Case3:13-cv-03826-EMC Documentl FiledO8/16/13 Pagel Of 14 MONIQUE 190385) I em DUCKWORTH, PETERS, LEBOWITZ, OLIVIER LLP AUG 1 6 2013 100 Bush Street, Suite 1800 R1 CH 7 San Francisco, CA 94104 Telephone: (415) 433-0333 NORTHERN DISTRICT OF Facsimile: (415) 449-6556 SHANNON pro hac vice anticipated (sliss@llrlaw.c01n) SARA SMOLIK, pro hac vice anticipated LICHTEN RC. 100 Cambridge Street, 20?? Floor Boston, MA 02114 Telephone: (617) 994?5800 Facsimile: (617) 994-5801 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (SAN RANCISCO DIVISION) DOUGLAS and THOMAS UNO. 1L3 COLOPY, individually and on behalf of all others similarly situated, . . CLASS ACTION COMPLAINT Plaintiffs? AND JURY DEMAND vs. UBER TECHNOLOGIES, INC, TRAVIS KALANICK, and RYAN GRAVES, Defendants. I. INTRODUCTION 1. This case is brought on behalf Of individuals who have worked as Uber drivers anywhere in the United States (other than Massachusetts). Uber is a car service that provides drivers who can be hailed and dispatched through a mobile phone application. As set forth below, Uber advertises tO customers that gratuity is included in the cost Of its car service. 1 CLASS ACTION COMPLAINT AND JURY DEMAND INCase3:13-cv-03826-EMC Documentl Filed08/16/13 Page2 of 14 yr However, Uber drivers do not receive the total proceeds of any such gratuity. Instead, they receive only a portion of such gratuity, if any is charged to the customer. Furthermore, based on Uber?s communication to customers that gratuity is included in the price of its service and so they do not need to tip, few if any customers leave tips for the drivers. Thus, drivers do not receive the tips that are customary in the car service industry and that they would otherwise receive were it not for Uber?s communication to customers that they do not need to tip. 2. Plaintiffs bring this action on their own behalf, and on behalf of all Uber drivers across the country (except in Massachusetts), for unjust enrichment, tortious interference with contractual and/or advantageous relations, violation of the California Gratuities Law, California Labor Code Section 351, and the California Unfair Competition Law, Cal. Bus. Prof. Code 17200 et seq. based upon Uber?s failure to remit to drivers the entire gratuity paid by customers, or alternatively for Uber?s causing the drivers not to receive tips they would otherwise receive based on Uber?s communications to customers that the gratuity is already included in the price of the car service and that there is no need to tip the drivers. 3. In addition, Plaintiffs bring this action on behalf of Uber drivers who have been misclassi?ed as independent contractors and thereby required to pay business expenses (such as for their vehicles, gas, and maintenance) in violation of California Labor Code Section 2802. II. PARTIES 4. Plaintiff Douglas O?Connor is an adult resident of South San Francisco, California, where he works as an Uber driver. 5. Plaintiff Thomas Colopy is an adult resident of San Francisco, California, where he works as an Uber driver. 2 CLASS ACTION COMPLAINT AND JURY DEMAND Case3:13-cv-03826-EMC Documentl Filed08/16/13 Page3 of 14 6. Plaintiffs bring this action on their own behalf and on behalf of all others similarly situated, namely all other individuals who have worked as Uber drivers anywhere in the country other than in Massachusetts. 7. Defendant Uber Technologies, Inc. (?Uber?) is a corporation headquartered in San Francisco, California. 8. Defendant Travis Kalanick at all relevant times has been an individual resident of California and the President and a Director of Uber. Mr. Kalanick is responsible for the pay practices and employment policies of Uber throughout the country. 9. Defendant Ryan Graves at all relevant times has been an individual resident of California and the Vice President and a Director of Uber. Mr. Graves is responsible for the pay practices and employment policies of Uber throughout the country. JURISDICTION 10. This Court has jurisdiction over the state law claims asserted here pursuant to the Class Action Fairness Act, 28 U.S.C. 1332(d)(2), since Defendants are California citizens and members of the plaintiff class reside in states around the country; there are more than 100 putative class members; and the amount in controversy exceeds $5 million. IV. STATEMENT OF FACTS ll. Uber provides car service in cities throughout the country via an on demand dispatch system. 12. Uber offers customers the ability to hail a car service driver on a mobile phone application. 13. Uber?s website advertises that ?Uber is our on-demand rivate driver.? 3 CLASS ACTION COMPLAINT AND JURY DEMAND Case3:13-cv-03826-EMC Documentl Filed08/16/13 Page4 of 14 14. Uber states to customers, on its website and in marketing materials, that a gratuity is included in the total cost of the car service and that there is no need to tip the driver. 15. However, Uber drivers do not receive the total proceeds of this gratuity. 16. Instead, Uber retains a portion of the gratuity for itself. 17. In some instances, Uber has advertised that the gratuity is a set amount, such as 20%, of the fare that it charges. 18. In other instances, Uber has not speci?ed the amount of the gratuity. 19. However, it is customary in the car service industry for customers to leave approximately a 20% gratuity for drivers. Thus, where the amount of the gratuity is not speci?ed, reasonable customers would assume that the gratuity is in the range of 20% of the total fare. 20. As a result of Uber?s conduct and actions in informing customers that gratuity is included in the cost of its service, and that there is no need to tip the drivers, but then not remitting the total proceeds of the gratuity to the drivers, Uber drivers have been deprived of payments to which they are entitled, and to which reasonable customers would have expected them to receive. 21. Moreover, by informing customers that there is no need to tip the drivers, Uber has further interfered with the advantageous relationship that drivers would otherwise enjoy with customers. Uber has prevented its drivers from receiving tips from customers based upon its deceptive and misleading communications to customers. 22. Although many are classi?ed as independent contractors, Uber drivers are employees. 4 CLASS ACTION COMPLAINT AND JURY DEMAND Case3:13-cv-03826-EMC Documentl Filed08/16/13 Page5 of 14 is." They are required to follow a litany of detailed requirements imposed on them by Uber and they are graded, and are subject to termination, based on their failure to adhere to these requirements (such as rules regarding their conduct with customers, the cleanliness of their vehicles, their timeliness in picking up customers and taking them to their destination, what they are allowed to say to customers, etc.) 23. In addition, Uber is in the business of providing car service to customers, and that is the service that Uber drivers provide. The drivers? services are fully integrated into Uber?s business, and without the drivers, Uber?s business would not exist. 24. However, those Uber drivers who are misclassi?ed as independent contractors are required to bear many of the expenses of their employment, including expenses for their vehicles, gas, and other expenses. California law requires employers to reimburse employees for such expenses, which are for the benefit of the employer and are necessary for the employees to perform their jobs. V. CLASS ACTION ALLEGATIONS 25. Plaintiffs bring this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of all drivers who have worked for Uber anywhere in the country, except in Massachusetts. 26. Plaintiffs and other class members throughout the country have uniformly been deprived of gratuities that were not remitted to them. 27. Plaintiffs and other class members throughout the country have been uniformly deprived oftips that they would otherwise have received were it not for Uber informing passengers that there is no need to tip the drivers. 5 CLASS ACTION COMPLAINT AND JURY DEMAND Case3:13-cv-03826-EMC Documentl Filed08/16/13 Page6 of 14 4 28. The members of the class are so numerous that joinder of all class members is impracticable. 29. Common questions of law and fact regarding Uber?s conduct with respect to gratuities exist as to all members of the class and predominate over any questions affecting solely any individual members of the class. Among the questions of law and fact common to the class are: 3. Whether Defendants have charged customers a gratuity for class members? services; b. Whether Defendants failed to distribute the total proceeds of those gratuities to the class members; 0. Whether Defendants have informed customers that gratuity is included in the price of the Uber service and so there is no need to tip their drivers; d. Whether class members had a reasonable expectation of receiving tips were it not for this representation Uber made to customers; e. Whether class members have suffered damages based upon Uber?s representation to customers that there is no need to tip the drivers. 30. Common questions of law and fact also exist as to members of the class who have been misclassi?ed as independent contractors. Among the questions of law and fact that are common to these drivers are: a. Whether class members have been required to follow uniform procedures and policies regarding their work for Uber; 6 CLASS ACTION COMPLAINT AND JU RY DEMAND Case3:13-cv-03826-EMC Documentl Filed08/16/13 Page? of 14 b. Whether the work performed by class members?uproviding car service to customers?is Within Uber?s usual course of business, and whether such service is fully integrated into Uber?s business; c. Whether these class members have been required to bear the expenses of their employment, such as expenses for their vehicles, gas, and other expenses. 31. The named plaintiffs are members of the class, who suffered damages as a result of Defendants? conduct and actions alleged herein. 32. The named plaintiffs? claims are typical of the claims of the class, and the named plaintiffs have the same interests as the other members of the class and subclass. 33. The named plaintiffs will fairly and adequately represent and protect the interests of the class. The named plaintiffs have retained able counsel experienced in class action litigation. The interests of the named plaintiffs are coincident with, and not antagonistic to, the interests of the other class members. 34. The questions of law and fact common to the members of the class predominate over any questions affecting only individual members, including legal and factual issues relating to liability and damages. 35. A class action is superior to other available methods for the fair and ef?cient adjudication of this controversy because joinder of all class members is impractical. Moreover, since the damages suffered by individual members of the class may be relatively small, the expense and burden of individual litigation makes it practically impossible for the members of the class individually to redress the wrongs done to them. The class is readily de?nable and 7 CLASS ACTION COMPLAINT AND JURY DEMAND Case3:13-cv-03826-EMC Documentl Filed08/16/13 Page8 of 14 prosecution of this action as a class action will eliminate the possibility of repetitive litigation. There will be no dif?culty in the management of this action as a class action. COUNT I Tortious Interference with Contractual and/or Advantageous Relations 36. Defendants? conduct, as set forth above, in failing to remit the total proceeds of gratuities to the drivers constitutes unlawful tortious interference with the contractual and/or advantageous relationship that exists between the drivers and the customers, under state common law. Furthermore, Defendants? conduct in informing Uber customers that there is no need to tip their drivers also constitutes unlawful tortious interference with the contractural and/or advantageous relationship that exists between the drivers and the customers, under state common law. COUNT II Unjust Enrichment/Quantum Met-nit 37. Defendants have been unjustly enriched through their retention of a portion of the gratuities owed to the drivers, in violation of state common law. Plaintiff and the class are entitled to restitution for their full share of the proceeds of these gratuities under the state common law doctrine of quantum meruil?. COUNT Breach of Contract 38. Defendants? conduct, as set forth above, constitutes breach of contract under state common law. Defendants have an implied contract with the drivers to remit to them the total proceeds of all gratuities. Additionally, the drivers are third-party bene?ciaries of the 8 CLASS ACTION COMPLAINT AND JURY DEMAND Case3:13-cv-03826-EMC Documentl Filed08/16/13 Page9 of 14 contractual relationship between Defendants and the customers, pursuant to which the customers pay the gratuity for the bene?t of the drivers. COUNT IV Statutory Gratuity Violation 39. Defendants? conduct, as set forth above, in failing to remit all gratuities to the Uber drivers constitutes a violation of California Labor Code Section 351. This violation is enforceable pursuant to UCL 17200. COUNT Independent Contractor Misclassi?cation and Expense Reimbursement Violation 40. Defendants? conduct, as set forth above, in misclassifying Uber drivers as independent contractors, and failing to reimburse them for expenses they paid that should have been home by their employer, constitutes a Violation of California Labor Code Section 2802. COUNT VI Unfair Competition in Violation of California Business and Professions Code 17200 et seq. 41. Defendants? conduct, as set forth above, violates the California Unfair Competition Law, Cal. Bus. Prof. Code 17200 et seq. Defendants? conduct constitutes unlawful, unfair, or fraudulent business acts or practices, in that Defendants have committed the tort of tortious interference with contractual and/or advantageous relations, unjustly enriched themselves, breached implied contracts with the drivers and with customers for 9 CLASS ACTION COMPLAINT AND JURY DEMAND Case3:13-cv-03826-EMC Documentl Filed08/16/13 PagelO of 14 whom the drivers are third party bene?ciaries, and have violated California Labor Code Sections 351_and 2802. As a result of Defendants? unlawful, unfair, and fraudulent conduct, Plaintiffs and class members suffered injury in fact and lost money and property, including, but not limited to loss of gratuities to which they were entitled and customers expected them to receive, loss of tips that customers did not pay to the drivers due to Defendants? deceptive representations, and business expenses that drivers were required to pay. Pursuant to California Business and Professions Code 17203, Plaintiffs and class members seek declaratory and injunctive relief for Defendants? unlawful, unfair, and fraudulent conduct and to recover restitution. Pursuant to California Code of Civil Procedure 1021.5, Plaintiffs and class members are entitled to recover reasonable attorneys? fees, costs, and expenses incurred in bringing this action. JURY DEMAND Plaintiffs request a trial by jury on all their claims. 41. WHEREFORE, Plaintiffs request that this Court certify this case as a class action, pursuant to Fed. R. Civ. P. 23; award restitution for all charged gratuities which were not remitted to the drivers; award damages for Defendants? interference with drivers? receiving tips from customers; award reimbursement that the drivers who were misclassi?ed as independent contractors were required to bear; award pre- and post?judgment interest; award reasonable attorneys? fees, costs, and expenses; and award any other relief to which the plaintiffs may be entitled. 10 CLASS ACTION AND JURY DEMAND 22 23 24 25 27 28 Case3:13-cv-03826-EMC Documentl Filed08/16/13 Pagell of 14 Dated: August 2013 Respectfully submitted, DOUGLAS AND THOMAS COLOPY, individually and on behalf of all others similarly situated, BY their aw CMONIQ LIVIER (SBN 190385) (moiivier@dplelaw.com DUCKWORKTH, PETERS, LEBOWITZ, OLIVIER LLP 100 Bush Street, Suite 1800 San Francisco, CA 94104 Telephone: (415)433-0333 Facsimile: (415) 449-6556 SHANNON pro hac vice anticipated SARA SMOLIK, pro hac vice anticipated (ssmolik@llrlaw.com) LISS-RIORDAN, RC. 100 Cambridge Street, 20?? Floor Boston, MA 02114 Telephone: (617) 994-5800 Facsimile: (617) 9946801 1] CLASS ACTION COMPLAINT AND JURY DEMAND Case3:13-cv-03826-EMC Documentl Filed08/16/13 Page12 of 14 Exhibit 1 i Case3:13-cv-03826-EMC Hr? rs 44 (Rev. 12/12) Carrd rev (1/15/13) provided 13 local rules ofcourt. This form, approved by the Judicial Con Documentl FiledO8/16/13 Page13 of 14 CIVIL COVER SHEET Tire 44 civil cover sheet and the infomration contained herein neither replace nor supplement the ?lin and service 0pr erence of ti . eadings or other papers as uired law, exc tos 1e nrted States in epternber 1974, is required for the use of dreeglerk of 3Court for this purpose 0 initiating the civil docket sheet, (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. PLAINTIFFS DOUGLAS and THOMAS COLOPY, Individually and on behalf of all others similarly situated County of Residence of First Listed Plaintiff San Mateo (EXCEPTIN US. PLAINTIFF CASES) (C) Attorneys (Finn Name, Address. and Telephone Monique Olivrer (Cal. Bar No 190385) (415) 433?0333 Peters Lebowitz Olivier LLP 100 Bush Street Suite 1800 San Francisco, CA 94104 Shannon Liss-Riordan (pro hac vice anticipated) Sara Smolik (pro hac vice anticipated) Lichten Lies-Riordan, RC. 100 Cambridge St, Suite 2000 Boston, MA 02114 (617)994-5800 DEFENDANTS UBER TECHNOLOGIES, INC, TRAVIS KALANICK, and RYAN GRAVES County of Residence of First Listed Defendant San Francisco (IN US. PLAINTIFF CASES ONLIZI IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. NOTE: Attorneys (JfKnov-n) H. BASIS OF JURISDICTION (Place on in One Box U1 US. Government [33 Federal Question CITIZENSHIP 0F PRINCIPAL PARTIES (701mm in One BoijrPiaimr'?' (For Diversity Cases 0an} and One Boxfor' Defendant) PTF DEF TP EF P1 ainti?? (US. GovermuenrNor a Par-or) Citizen of This State I I Incorporated or Principal Place 4 4 ofBItsiness In This State 2 US. Government 4 Diversity Citizen ofAnotlrer State 2 2 Incorporated and Principal Place 13 5 5 Defendant (Indicate from ill) of Business In Another State Citizen or Subject ofa 3 3 Foreign Nation 6 6 Foreign Country 1V NATURE OF SUIT (Place an in One Box Oniy) a 5? fe?blt??dkitf??ni?if? El 1 10 insurance PERSONAL INJURY 625 Drug Related Seizure El 422 Appeal 28 USC 158 375 Fidse Claims Act 120 Marine 310 Airplane 365 Personal Injury of Property 21 USC 881 423 Withdrawal 400 State Reapportionment 130 Miller Act 315 Airplane Product Liability 690 Other 23 USC '57 410 Antitrust 140 Negotiable Instrument Liability 367 Health Care! 430 Banks and Banking 150 RecoveryI of Overpayment 320 Assault. Libel l?hannaccutical ?sz?s% 450 Commerce Enforcement of Judgment Slander Personal Injury 820 Copyrights [j 460 Deportation 15] Medicare Act 330 Federal Employers' Product Liability El 830 Patent 470 Racketeer In?uenced and [j 152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark Corrupt Organizations Student Loans 340 Marine Injury Product 480 Consumer Credit Veterans) El 345 Marine Product Liability wxn?sonm El 490 CabldSat'l?V 153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (139511} 850 Securitiesr'Comrnoditics/ ofVeteran?s Bene?ts 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) Exchange 160 Stockholdcm' Suits 355 Motor Vehicle 3'71 Truth in Lending 720 Labor/Management 863 {405(g)) 890 Other Statutory Actions 190 Other Contract Product Liability 380 Other Personal Relations 864 SSID 'I'itle XVI 891 Agricultural Acts CI 195 Contract Product Liability 360 Other Personal Property Damage 1] 740 Railway Labor Act 865 R31 (405 893 Environmental Matters 196 Franchise Injury 385 Property Damage 751 Family and Medical 895 Freedom of Information 362 Personal Injury - Product Liability Leave Act Act Medical Malpractice 790 Other Labor litigation 896 Arbitration 79} Employee Retirement El 899 Administrative Procedure 210 Land Condemnation 440 Other Civil Rights Habens Corpus: Income Security Act I 8'70 Taxes (US. Plaintiff Act/Review or Appeal of 220 Foreclosure 441 Voting 463 Alien Detainee or Deibndant) Agency Decision 230 Rent Lease Ejectment 2110 Torts to Land El 245 Tort Product Liability 290 Real Property 442 Employment 443 Housing! Sentence Accommodations 530 General 445 Amer. waisabilities 535 Death Penalty Employment Other: Other 550 CivilRiglIts 448 Education Conditions of Con?nement 510 Motions to Vacate [j 446 Amer. var/Disabilities 540 Mandamus Other 555 Prison Condition 560 Civil Detainee - 37? IRS?Third Party 26 USC 7609 950 Cormtitutioriality of State Statutes 465 Other Immigration Actions V. ORIGIN {Place an in One Box Only) 1 Original LJ 2 Removed from 3 Renranded from Proceeding State Court Appellate Court _l4 Reinstated or 5 LJ 6 Multidistrict Reopened Litigation tween?) VI. CAUSE OF ACTION Brief description of cause: Cite the US. Civil Statute under which you are ?ling (Do not cite jurisdictional r?r?m?rrm' unless (liver-ring): Class Action Fairness Act, 28 USC. 1332 Common law statutory violations for unlawful retention of gratuities VII. REQUESTED 1N El CHECK IF THIS IS A CLASS ACTION DEMAND CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, JURY DEMAND: Elves No RELATED IF ANY - JUDGE DOCKET NUMBER IX. DIVISIONAL ASSIGNMENT (Civil LR. 3?2) Case3:13-cv-03826-EMC Documentl Filed08/16/13 Page14 of 14 (Flare an in One Box Only) (X) SAN A DATE SIGNATURE OF ATTORNEY OF RECORD ND 0 SAN JOSE EUREKA August 16 2013 Mani - - Que Ohwer