UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:22-CV-23961-DPG

DAMIAN R. JOSEFSBERG, individually

and on behalf of all others similarly situated,

Plaintiff, 

v.

UBER TECHNOLOGIES, INC., and

CHECKR, INC.,

Defendants.

 / 

PLAINTIFF’S RESPONSE IN OPPOSITION TO 

DEFENDANT UBER TECHNOLOGIES, INC.’S MOTION TO DISMISS

Plaintiff, Damian R. Josefsberg, individually and on behalf of all others similarly situated (the 

“Plaintiff” or “Mr. Josefsberg”), hereby files his Response in Opposition to Defendant Uber 

Technologies, Inc.’s (“Uber”) Motion to Dismiss Plaintiff’s Class Action Complaint [ECF No. 27] 

(the “Motion”), and states:

INTRODUCTION

“Get in the Driver’s Seat and Get Paid” are the words that first greet visitors to the homepage 

of Uber’s website. Visitors are then encouraged to “drive on the platform with the largest network of 

active riders” and provided a link to “Sign up to drive”. From the moment that homepage loads on 

your screen, you get a clear picture of Uber’s number one priority: sign up as many drivers as 

possible. Because most of Uber’s revenues come from the rides its drivers provide, the more drivers 

it has, the more money it makes. So, any measure that reduces the rate at which drivers sign up, get 

approved, and start giving rides will presumably reduce revenues. While touting driver background 

checks is reassuring to riders (which Uber also seeks to attract), if they are too thorough and uncover 

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disqualifying information (such as criminal histories or false identities), Uber won’t be able to sign up 

as many drivers. 

Nevertheless, Uber’s webpage on rider safety proclaims: “All drivers are background checked 

before their first trip” by “third-party background check providers Checkr, HireRight, and Samba 

Safety, each of which is accredited by the Professional Background Screening Association.” Uber

then declares that each prospective driver isrequired to “undergo a multi-step safety screen” and submit 

certain verifiable information to become active on the platform, including their driver license (which 

“must be active and free of disqualifying restrictions”), “proof of insurance”, “vehicle inspection 

form”, and “vehicle registration”. And, after “all of your documents have been processed and you 

have passed the background check, you can begin driving using the Uber app.” 

Uber even warns that “Assuming someone else’s identity is prohibited ... Drivers are 

periodically asked to take a photograph of themselves, which we match against their on-file 

identification to help make sure the right driver is behind the wheel.” Unfortunately, as demonstrated 

in the Complaint, Uber’s background checks and multi-step safety screens are not very thorough or 

consistent. As a result, Mr. Josefsberg suffered damages that could have been prevented had Uber

followed the background check and identity verification proceduresit promised. Acknowledging such 

failures, Uber created a webpage for the victims of its drivers’ identity theft: “I do not drive with Uber, 

but I received a 1099 tax document from Uber”.

Diverting attention from the foregoing, Uber’s Motion to Dismiss challenges the sufficiency 

of Mr. Josefsberg’s claims for negligence, violations of the Fair Credit Reporting Act, and violations 

of Florida’s Deceptive and Unfair Trade Practices Act with arguments that are contrary to applicable 

law, ignore relevant allegations, and shift the blame to its “accredited” background checker and a

victim who couldn’t know his identity had been stolen. As such, the Motion should be denied in its 

entirety.

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ARGUMENT

I. LEGAL STANDARD

The threshold for surviving a motion to dismiss for failure to state a claim under Federal Rule 

of Civil Procedure 12(b)(6) is a low one. See Quality Foods de Centro Am., S.A. v. Latin Am. 

Agribusiness Dev. Corp., S.A., et al., 711 F.2d 989, 995 (11th Cir. 1983). A plaintiff must plead only 

enough facts to state a claim for relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 

127 S. Ct. 1955, 1968-69 (2007) (abrogating the “no set of facts” standard for evaluating a motion to 

dismiss established in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In evaluating the sufficiency of 

a complaint on a motion to dismiss, the well pleaded facts must be accepted as true and construed in 

the light most favorable to the plaintiff. Quality Foods, 711 F. 2d at 994-95. 

II. THE COMPLAINT PROPERLY PLEADS A NEGLIGENCE CLAIM. 

Uber alleges that Mr. Josefsberg has not properly pled a claim for negligence. To state a 

negligence claim, a plaintiff must plead facts sufficient to establish: (1) a legal duty of defendant; (2) 

breach of that duty; (3) damages; and (4) a causal connection between defendant’s breach and 

plaintiff’s damages. See Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003)).

Plaintiff must also show a causal connection between the damage and Uber’s alleged conductsufficient 

to confer standing under Article III. See id. The foregoing elements were sufficiently pled and detailed

in the Complaint, as demonstrated infra. 

A. Uber Owed a Duty to Mr. Josefsberg. 

Uber argues that Mr. Josefsberg cannot establish that Uber had any duty to ascertain the identity 

of a bad actor. See Motion at 19. Uber contends that it “owed no duty to Mr. Josefsberg to 

independently and separately investigate and ascertain the true identity of the bad actor outside of 

Uber’s already robust background check process carried out by Checkr.” Id. at 21 (emphasis added). 

Under Florida law, however, Uber owed a duty of care to not subject Mr. Josefsberg and the putative 

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class to an unreasonable risk of harm because they were foreseeable and probable victims of Uber’s

inadequate security practices.

i. Harm From Driver Identity Theft is Foreseeable on Uber’s Platform.

A duty may arise where the defendant created “a foreseeable zone of risk arising from the acts 

of defendant.” Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) (citing McCain 

v. Fla. Power Corp., 593 So. 2d 500, 503 n.2 (Fla. 1992)). Uber's ride-sharing service utilizes thirdparty drivers who, before becoming drivers, must submit online applications with personal identifying 

information that Uber considers in deciding whether to permit the applicant to become a driver. 

Because an applicant with a criminal background can submit the personal identifying information (e.g., 

social security number) of another individual whose identity he stole, and the entire application process 

is completed online without in-person interviews, if Uber (or the background check company it hires) 

fails to perform a proper background check and/or verify the applicant’s identity, the identity thief 

could become an Uber driver, earn income under the victim’s social security number and otherwise

harm the victim, and cause harm to ride-sharing passengers and other members of the public. The fact 

that Uber (or the background check company it hires) performs background checks on its driver 

applicants and, on its website, reassures the public of this and other measures it takes to protect its 

passengers and the public demonstrates that Uber is well aware of the risk of harm that criminals, 

including identify thieves, pose to their passengers. In fact, Uber’s website provides information for 

individuals whose identities were stolen by Uber drivers. Therefore, the risk of harm that can result 

from identity theft is well-known and foreseeable on Uber’s platform.

Given the foreseeable risk of harm stemming from identity theft on Uber's platform, Uber had 

a duty to take reasonable measures to prevent such activities from occurring. Complaint at ¶¶ 80-81, 

85. This includes implementing strict identity verification procedures to prevent individuals from 

using false identities on its platform. Id.

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“To impose a duty, it is not enough that a risk merely exists or that a particular risk is 

foreseeable; rather, the defendant's conduct must create or control the risk before liability may be 

imposed.” Demelus v. King Motor Co. of Fort Lauderdale, 24 So. 3d 759, 761 (Fla. 4th DCA 2009) 

(citing Aguila v. Hilton, Inc., 878 So. 2d 392, 395, 396-97 (Fla. 1st DCA 2004)). Here, Uber both 

created the risk that a driver using the identity of another individual would use its platform and had the 

ability to control that risk. Uber created the risk by offering a transportation service that utilizes thirdparty drivers who submit personal identifying information for verification and had the ability to control 

the risk by taking robust measures to verify the identities and backgrounds of those drivers. See 

Complaint at ¶ 80; Motion at 21.

Uber takes the position that it is not obligated to prevent harm caused by third parties. See

Motion at 14-15. However, Florida law recognizes circumstances in which a defendant has a duty to 

prevent intentional or criminal conduct by another. See Vic Potamkin Chevrolet, Inc. v. Horne, 505 

So. 2d 560, 562 (Fla. 3d DCA 1987) (en banc) (approved, 533 So. 2d 261 (Fla. 1988)). Those 

circumstances include where the defendant is in actual or constructive control of the tortfeasor or 

instrumentality. See id. Here, Uber had control of the identity thief and the instrumentality that caused 

the harm and injury to Mr. Josefsberg: (1) Uber hired and directed Checkr to perform and provide a

background check on the applicant using the identity of Mr. Josefsberg; (2) Uber was in control of 

allowing an individual who used Mr. Josefsberg’s identity to drive on Uber’s platform; (3) Uber failed 

to cancel that driver’s account until months after being notified of the identity theft and fraud

committed by the driver; (4) Uber issued an improper tax filing under Mr. Josefsberg’s social security 

number for income he did not earn; and (5) Uber failed to fix the improper tax filing. See Complaint 

at ¶¶ 42-46.

Uber alleges that even if there was a negligent act traceable to it, there is no proximate cause 

as the injury is a result of an unforeseeable intervening criminal act. See Motion at 16. However, 

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Florida courts have held that where the intervening criminal act was foreseeable to the original 

tortfeasor’s negligent act, that negligent act is a proximate cause of the injury. See Grieco v. Daiho 

Sangyo, Inc., 344 So. 3d 11, 23 (Fla. 4th DCA 2022). Here, Mr. Josefsberg has sufficiently alleged a 

nexus between Uber’s failure to complete a proper background check and Mr. Josefsberg’s harm 

resulting from Uber’s (i) permitting a driver who used Mr. Josefsberg’s identity to drive on its platform, 

and (ii) filing of an erroneous 1099-NEC stating that Mr. Josefsberg earned income from Uber. See

Complaint at ¶ 63. Likewise, Uber knew, or reasonably should have known, of the foreseeable 

consequences of its failure to properly screen its drivers, as many instances of substantially similar 

conduct have been reported to Uber in the past (such that Uber created a webpage to address the issue). 

See id. at ¶¶ 48, 93-94. And, thousands of nationwide rideshare and delivery scams and violent crimes

involving Uber’s platform have placed Uber on notice that it has systemically failed to verify the 

identity of its drivers and thereby prevent criminals from utilizing its platform and harming customers 

and the public at large. See id. at ¶ 48.

Moreover, Mr. Josefsberg is alleging that Uber caused a foreseeable harm by failing to take 

remedial measures upon learning that one of its drivers had used Mr. Josefsberg’s identity to become 

a driver and Uber had paid that driver and issued a 1099 under Mr. Josefsberg’s social security number 

causing harm to Mr. Josefsberg. See id. at ¶ 63. Specifically, Uber failed to immediately suspend the 

driver’s Uber account or correct the improperly filed 1099-NEC. See id.

ii. A Legal Duty Arises from Uber’s Undertaking the Task of Identity 

Verification. 

Uber argues that its driverscreening procedures or corporate policies do not create a legal duty. 

Uber cites several cases to support the notion that corporate policy does not create a separate duty of 

care. However, all of those cases find that “a company’s internal safety policies may be evidence of a 

standard of care” and that a duty is owed where defendant created a foreseeable zone of risk. See, e.g.,

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; Boutilier ex rel Boutilier v. Chrysler Ins. Co., 2001 U.S. Dist. LEXIS 5526, 2001 WL 220159, at *1 

(M.D. Fla. Jan. 31, 2001); (citing Mayo v. Publix Super Markets, Inc., 686 So. 2d 801, 802 (Fla. 4th 

DCA 1997) (a company’s safety policies may be evidence of a general standard of care); Alcon Labs., 

Inc. v. Allied Vision Grp., Inc., No. 18-CV-61638, 2019 U.S. Dist. LEXIS 37718, at *20 (S.D. Fla. 

Mar. 7, 2019) (finding corporate policy did not create an independent duty of care where defendant 

did not create the risk) (emphasis added). 

Having created minimum standards for hiring drivers and undertaken to perform consumer

driving and criminal record checks of its drivers before sending them out on the road to pick up 

passengers under Uber’s guise of safe professional drivers, Uber cannot now credibly claim that it 

owes no duty to actually screen its drivers or adhere to its own minimum standards. See, e.g., Riedel

v. Sheraton Bal Harbour Assoc., 806 So. 2d 530, 532 (Fla. 3d DCA 2001) (“Although the Sheraton 

initially had no obligation to provide the Riedels with medical assistance, once it undertook this task, 

it had a duty to exercise reasonable care.”). This standard, known as the undertaker’s doctrine, which 

is well established under Florida law, imposes a duty of care on Uber under these circumstances. 

In Clay Electric Cooperative, the Court adopted the standard set forth in section 324A of the 

Restatement (Second) of Torts (1965):

One who undertakes, gratuitously or for consideration, to render services to another 

which he should recognize as necessary for the protection of a third person or his 

things, is subject to liability to the third person for physical harm resulting from his 

failure to exercise reasonable care to protect his undertaking, if: 

(a) his failure to exercise reasonable care increases the risk of harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or 

(c) the harm suffered because of reliance of the other or the third person upon the 

undertaking.

873 So. 2d at 1185; see also Rehab. Ctr. at Hollywood Hills, LLC v. Fla. Power & Light Co., 299 So. 

3d 16, 17 (Fla. 4th DCA 2020).

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Uber has minimum standards for the hiring of its drivers, known as “Driver Screening.” 

Complaint at ¶ 46. Pursuant to Uber’s “Driver Screening” procedures, when the individual who stole 

Mr. Josefsberg’s identity applied to become an Uber driver, Uber was required to check his driving 

and criminal background before permitting him to become a driver. See id. at ¶ 24. However, the 

identity thief’s background was not checked by Uber or its background check company (Checkr). 

Indeed, Uber did not ascertain the full address, full social security, or date of birth of the individual on 

which it was running a background check. See id. at ¶ 8. Moreover, it did not obtain or request a proof 

of identity.1 This is despite Uber’s “driving screening” stating that “drivers are periodically asked to 

take a photograph of themselves, which we match against their on-file identification to help make sure 

the right driver is behind the wheel.” Id. at ¶ 46.

The Florida Supreme Court has held that “voluntarily undertaking to do an act that if not 

accomplished with due care might increase the risk of harm to others . . . confers a duty of reasonable 

care, because it thereby ‘creates a foreseeable zone of risk.’” Union Park Memorial Chapel v. Hutt, 

670 So. 2d 64, 67 (Fla. 1996) (quoting McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla.1992)). 

Therefore, Uber owed a duty of care to protect Mr. Josefsberg from an unreasonable risk of harm 

because he was a foreseeable and probable victim of any inadequate security practices that Uber failed 

to implement to protect its drivers, users, and the public. 

1 Mr. Josefsberg through Uber attempted to obtain any information that would show that Checkr 

or Uber obtained the required consent to run a background check or identity verification on Mr. 

Josefsberg before allowing an individual to drive under his name. See Complaint at ¶ 38. 

Specifically, Mr. Josefsberg requested any documents and correspondence between Uber and 

Checkr related to any “background check or identity verification that Checkr, Inc. performed for 

and provided to Uber associated with any individual using Mr. Josefsberg’s name, social security 

number, or other personal identifiable information.” Id. These background and verification 

documents were requested on multiple occasions. See id. at ¶¶ 38-42. Despite such requests, Uber 

failed to provide any documents showing that any verification was obtained by Uber before 

running the report in Mr. Josefsberg’s name. See id. at ¶¶ 43, 45.

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B. Mr. Josefsberg Sufficiently Alleged Uber Breached Its Duty of Reasonable Care. 

As outlined above, Uber owed a duty to Mr. Josefsberg to verify the identity of its driver

applicants before permitting them to become drivers. Complaint at ¶¶ 80, 83. Uber breached this duty 

by not adequately verifying the identity of its drivers and, in particular, the driver who had stolen Mr. 

Josefsberg’s identity and permitting him to become an Uber. See id. at 85. Indeed, as mentioned

above, Uber faces this issue so often that it has a webpage dedicated to assisting victims of Uber 

drivers’ identity theft.2 Unfortunately, Uber is not very helpful even when victims follow the protocol 

laid out on its webpage. See id.at ¶¶ 45, 50, 63. 

Uber cannot not credibly argue that it did not breach the duty of reasonable care because it was 

put on notice of the Uber driver’s theft of Mr. Josefsberg’s identity but did not stop the driver from 

continuing to use its platform (and Mr. Josefsberg identity) for more months, causing additional harm 

to Mr. Josefsberg. See Complaint at ¶ 44. By doing so, Uber failed to take reasonable steps to prevent 

foreseeable harm to Mr. Josefsberg. This failure to act is a breach of Uber's duty to exercise reasonable 

care to ensure the safety and security of its users and drivers. 

Moreover, Uber breached its duty of care by filing a 1099-NEC under Mr. Josefsberg’s name

and social security number. See id. at ¶¶ 29-31. Mr. Josefsberg was not even informed of that tax 

filing until, for business purposes, he ordered his IRS transcript and saw that it reflected the issuance 

of the 1099-NEC under his social security number. See id. at ¶ 30. The 1099-NEC filed by Uber did 

not even list Mr. Josefsberg’s street address, instead listing it as “UNKNOWN”. See id. at ¶ 31. 

Despite having sufficient proof that it had filed an improper 1099-NEC under Mr. Josefsberg’s name

and social security number, as of the commencement of this action, Uber had neither corrected its 

2 See Uber, “I do not drive with Uber, but I received a 1099 tax document from Uber”, 

https://help.uber.com/driving-and-delivering/article/i-do-not-drive-with-uber-but-i-received-a1099-tax-document-from-uber?nodeId=edd5d179-cbd5-49b7-ae55-19d865cd9efa (last visited 

March, 17, 2023). 

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erroneous tax filing nor complied with Mr. Josefsberg’s requests for documents and correspondence 

related to any background check or identity verification it purportedly had performed for the identity 

thief’s driver account, constituting a continued breach of its duty of care to Mr. Josefsberg. See id. at ¶ 

37-43.

III. FAIR CREDIT REPORTING ACT

The FCRA requires consumer reporting agencies to “follow reasonable procedures to assure 

maximum possible accuracy of” consumer reports and imposes liability on “[a]ny person who willfully 

fails to comply with any requirement [of the Act] with respect to any consumer is liable to that 

consumer”. 15 U.S.C. §1681e(b), §1681n(a). Uber argues that the Count III should be dismissed for 

lack of Article III standing. Specifically, Uber asserts that Mr. Josefsberg cannot establish that Uber’s 

actions were the proximate cause of his damages as required under the FCRA. See Motion at 17.

Uber cites to Peters v. St. Joseph Servs. Corp. for the notion that unknown third parties break 

the chain in causation. See 74 F. Supp. 3d 847, 857 (S.D. Tex. 2015). However, the Peters plaintiff 

was unable to allege any quantifiable damage or loss suffered at the hands of the defendant and the 

court was not able to find proximate cause because there was no clear and direct link between 

defendant’s actions and plaintiff’s injuries. See id. Here, Mr. Josefsberg has pled a clear and direct 

link between Uber’s actions and his damages.

Indeed, the Complaint alleges that Defendant systematically violated section 1681b(b)(3) of 

the FCRA by ordering consumer reports without providing the person who is the subject of the report 

sufficient and timely notice of the report. See Complaint at ¶ 51. Then, it alleges that Uber failed to 

get actual consent from Josefsberg and other putative class members before running consumer reports.

See id. at ¶ 110. And finally, the Complaint alleges that, as a result of Uber’s “illegal procurement of 

credit and background reports by way of their inadequate disclosures . . . Plaintiff and Class members 

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have been injured . . . in violation of the FCRA.” Id. As such, Mr. Josefsberg has sufficiently pled 

causation and has standing to pursue his FCRA claim.

A. Uber Violated the FCRA by Failing to Obtain Identification Prior to Running the 

Report.

Mr. Josefsberg has properly pled that Uber violated Section 1681b(b)(3) of the FCRA by 

ordering consumer reports without, beforehand, providing sufficient and timely notice to Mr. 

Josefsberg and others similarly situated. See Complaint at ¶102-103, 107. Uber arguesthat the FCRA 

does not require Uber to ascertain who they obtain authorization from and does not require 

“identification verification.” See Motion at 24.

Uber contends that Mr. Josefsberg fails to consider that Uber may have obtained the required 

consent to run the background check from the individual who used Mr. Josefsberg’s identity to become 

a driver. See id. Curiously, however, Uber did not state anywhere in its Motion that it did obtain the 

required consent from Mr. Josefsberg or any individual purporting to be Mr. Josefsberg. In fact, presuit, Mr. Josefsberg had attempted to obtain any information that would show that Uber had obtained 

the required consent from the identity thief or Mr. Josefsberg to run the report. See Complaint at ¶ 38. 

Specifically, Mr. Josefsberg requested any documents and correspondence between Uber and Checkr 

related to any “background check or identity verification that Checkr, Inc. performed for and provided 

to Uber associated with any individual using Mr. Josefsberg’s name, social security number, or other 

personal identifiable information.” Id. These verification documents were requested on multiple 

occasions. See id. at ¶¶ 38-42. Despite the requests, Uber has failed to provide any documents showing 

that any verification was obtained by Uber before running the report in Mr. Josefsberg’s name. See id. 

at ¶¶ 43, 45. 

In the Complaint, Mr. Josefsberg alleged that Uber did not verify nor indicate that it obtained 

the necessary consent before running a background check using Mr. Josefsberg’s information. See 

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Complaint at ¶102-103, 107. In particular, Mr. Josefsberg has pled that Uber procured or caused to be 

procured consumer reports without informing Mr. Josefsberg or putative class members of their rights 

under the FCRA. See id. at ¶ 108. Therefore, because these allegations must be accepted as true and 

viewed in the light most favorable to Mr. Josefsberg, Mr. Josefsberg has pled causation sufficient to 

have standing to bring a claim for violation under FCRA for which he and others similarly situated are

entitled to compensation. See Quality Foods, 711 F. 2d at 995.

Uber further argues that it has no responsibility for identification verification under the FCRA,

citing Domante v. Dish Networks, 974 F.3d 1342, 1346 (11th Cir. 2020). See Motion at 25. Indeed, 

Domante stands for the notion that under the FCRA a defendant must procure information to verify 

the person’s identity before requesting a report. Id. at 1347. Here, Uber did not verify the information 

submitted by the driver applicant, especially considering such information was being used to hire a 

driver for the public at large and, in fact, the applicant was approved to become an Uber driver despite

using Mr. Josefsberg’s identity (and providing only partial personal identifying information) in his 

application. See Complaint at ¶ 93. And, in Domante, where the stolen information was used to merely

open a personal cable account, the defendant obtained more information than Uber by requiring a birth 

date. 974 F.3d at 1347.

Uber also cites two other cases that strictly address the “proper purpose” for obtaining a 

consumer report. See Motion at 26. These decisions are inapposite as Mr. Josefsberg is not alleging 

that Uber obtained the report for an improper purpose but rather obtained the report without proper 

authorization.3 See Complaint at ¶ 93.

3 See re Glanton v. DirecTV, LLC, 172 F. Supp. 3d 890, 896 (D.S.C. 2016) (dismissing the FCRA 

claim because plaintiff did not allege any facts that the consumer report was not obtained for a 

proper purpose under 15 U.S.C. § 1681b(f)); (Danehy v. Jaffe & Asher, LLP, 2015 U.S. Dist. 

LEXIS 32579, *12) (finding plaintiff has failed to plead sufficient facts from which the court could 

infer defendant lacked a permissible purpose to request his consumer report).

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Taking the Mr. Josefsberg's allegations as true and drawing reasonable inferences in the Mr. 

Josefsberg's favor, Uber has failed to comply with the FCRA by not obtaining the consent needed to 

run background reports and not adequately verifying the identity of driver applicants.

B. Mr. Josefsberg Properly Alleges that Uber’s Conduct was Willful or Negligent.

To state a cause of action under the FCRA, a plaintiff must allege that defendant’s alleged 

FCRA violation was either negligent or willful. See Helman v. Udren L. Offs., P.C., 85 F. Supp. 3d 

1319, 1331–32 (S.D. Fla. 2014). Under the majority rule, a willful act is defined as “simply a knowing 

and intentional act, without malevolent purpose.” See Cowley v. Burger King Corp. 2008 U.S. Dist. 

LEXIS 87852 (S.D. Fla., May 23, 2008). The United States Supreme Court interpreted the term 

“willful” as used in section 1681n, expressly holding that section 1681n(a) encompasses not only 

knowing and intentional violations of the FCRA, but reckless ones as well. See Safeco Ins. Co. of Am. 

v. Burr, 127 S. Ct. 2201, 2216, 167 L. Ed. 2d 1045 (2007); id. at 2208-11.

4

Here, while Mr. Josefsberg primarily claims that Uber’s alleged FCRA violation was willful, 

see Complaint at ¶ 109 (alleging that “Defendants willfully violated and continue to violate the FCRA 

including, but not limited to, § 1681b(b)(2)(A). Defendants’ willful conduct is reflected by, among 

other things, the facts set forth above”) (emphasis added), Mr. Josefsberg alternatively alleged that 

Uber negligently violated the FCRA. See id. at ¶ 112 (“In the alternative to Plaintiff’s allegations that 

these violations were willful, Plaintiff alleges that the violations were negligent”). In particular, Mr. 

4 “Willfulness under the FCRA is understood to be a question of act for the jury”. Cowley, 2008 

U.S. Dist. LEXIS 87852 (S.D. Fla., May 23, 2008) (citing to Edwards v. Toys "R" Us, 527 F. Supp. 

2d 1197, 1210 (C.D. Cal. 2007) (denying a merchant's motion for summary judgment, finding that 

material issues of fact existed as to whether the merchant willfully violated FACTA)); see also 

Lenox v. Equifax Information Services LLC, No. 05-01501-AA, 2007 U.S. Dist. LEXIS 34453 at 

*19 (D. Or. May 7, 2007) (“the determination as to whether defendant's action or inaction rises to 

the level of willfulness so as to violate the statutory obligations of the FCRA is also a question of 

fact”).

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Josefsberg alleged facts sufficient to conclude that Uber was willful or reckless in its violation of the 

FCRA:

Defendants [Uber and Checkr] acted in deliberate or reckless disregard of their 

obligations and the rights of consumers, including Mr. Josefsberg and class members. 

Defendants’ willful conduct is reflected by, among other things, the following facts:

(a) Defendants are large corporations with access to legal advice; (b) Defendants 

required a purported authorization to perform consumer and background checks in the 

employment process which, although defective, evidences Defendants’ awareness of 

and willful failure to follow the governing laws concerning such authorizations; (c) 

despite knowledge of the consumer protections afforded to prevent unauthorized use 

of a consumer’s background report, Defendants did not contact Plaintiff or the Class 

members to verify their identities and/or to ensure that they were running background 

reports for the correct people, (d) Indeed, Defendants did not make any effort to 

confirm that they had Plaintiff or Class members’ authorization to order or prepare the 

background reports and to prevent identity theft that occurred here; and (e) The plain 

language of the statute unambiguously indicates that failure to obtain consent and 

provide notice to the actual consumer whose background report is being prepared 

violates the disclosure and authorization requirements of the FCRA.

Id. at ¶ 107. If evidence is presented to support the foregoing allegations, a reasonable jury could find 

that Uber’s violations of the FCRA were willful or reckless as opposed to merely negligent. Or, the 

jury could find that Uber was negligence in its violations. But, regardless, because Mr. Josefsberg 

alleged that Uber’s violation was willful (or reckless) or negligent, he has sufficiently pled his claim 

for Uber’s violation of the FCRA. See id. at ¶¶ 107, 109, 112.

IV. FLORIDA’S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT

A. Mr. Josefsberg Has Properly Pled Causation Under FDUTPA.

FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or practices, and 

unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204(1), Fla. Stat. 

A FDUTPA plaintiff must sufficiently plead three elements: “(1) a deceptive act or unfair practice; (2) 

causation; and (3) actual damages.” Carriuolo v. GM Co., 823 F.3d 977, 983 (11th Cir. 2016). “A 

deceptive practice under the FDUTPA is a ‘material representation or omission that is likely to mislead 

the consumers acting reasonably under the circumstances.’” Burrows v. Purchasing Power, LLC, No. 

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1:12-cv-22800-UU, 2012 U.S. Dist. LEXIS 186556, at *18 (S.D. Fla. Oct. 18, 2012). “An unfair 

practice is one that offends established public policy and one that is immoral, unethical, oppressive, 

unscrupulous or substantially injurious to consumers.” PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 

So. 2d 773, 777 (Fla. 2003). 

Under Florida law, “an objective test is employed in determining whether the practice was 

likely to deceive a consumer acting reasonably.” Carriuolo, 823 F. 3d at 984. “That is, ‘[a] party 

asserting a deceptive trade practice claim need not show actual reliance on the representation or 

omission at issue.’” Id.; see Harris v. Nordyne, LLC, No. 14-CIV-21884-Bloom/Valle, 2014 U.S. 

Dist. LEXIS 189248, at *17 (S.D. Fla. Nov. 13, 2014) (“Reliance is not required for causation under 

FDUTPA”). “When addressing a deceptive or unfair trade practice claim, the issue is not whether the 

plaintiff actually relied on the alleged practice, but whether the practice was likely to deceive a 

consumer acting reasonably in the same circumstances.” Harris, 2014 U.S. Dist. LEXIS 189248, at

*19. 

Uber argues that “[b]ecause Plaintiff has demonstrably failed to plead causation, his FDUTPA 

claim should also be dismissed.” Motion at 10. This argument holds no merit. Indeed, as the foregoing 

case law spells out, to plead causation under FDUTPA, all that is required is a showing that there is a 

causal connection between the alleged deceptive act and the alleged damages. See § 501.211(2), Fla. 

Stat. (“[A] person who has suffered a loss as a result of a violation of this part . . . .” (emphasis added)). 

The Complaint alleges that Uber failed “to properly conduct background checks and identity 

verifications of Uber drivers, and/or take appropriate actions to protect the public from

misrepresentations of prospective or existing Uber drivers that reasonably could have been discovered 

by a proper background check and identity verification, and issuing complete and accurate 1099 forms, 

resulting in foreseeable harm to the public.” Complaint at ¶ 117. Mr. Josefsberg also alleged a causal 

connection between the deceptive act and the alleged damages, stating that “due to Uber’s failure to 

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abide by its own background check and identity verification policies and procedures and failure to 

issue complete and accurate 1099 forms, Uber allowed an individual to assume Mr. Josefsberg’s 

identity in driving for Uber.” Id. at ¶ 119. Finally, Mr. Josefsberg alleged:

[a]s a direct and proximate result of Uber’s unfair, unlawful and/or deceptive business 

practices described herein, Mr. Josefsberg has been aggrieved and suffered an injury 

in fact because Uber has obtained valuable property, money and/or services at the 

expense of Mr. Josefsberg, including but not limited to incurring costs associated with 

(i) hiring and paying professionals to rectify the incorrect tax filings, (ii) adverse effects 

on his tax filing status, (iii) filing and pursuing a complaint for identity theft with the 

FTC, and (iv) other adverse effects of identity theft.

Id. at ¶ 121. Thus, Mr. Josefsberg has sufficiently pled causation for the purposes of his FDUTPA 

claim against Uber.

B. Mr. Josefsberg Has Properly Alleged His FDUTPA Claim as an Aggrieved Party.

Mr. Josefsberg acknowledges that his monetary damages are consequential and cannot be 

recovered under FDUTPA. However, this does not bar his claim against Uber.

“In the context of FDUTPA, ‘actual damages’ are defined as the difference in the market value 

of the product or service in the condition in which it was delivered and its market value in the condition 

in which it should have been delivered according to the contract of the parties.” Rodriguez v. Recovery 

Performance & Marine, LLC, 38 So. 3d 178, 180 (Fla. 3d DCA 2010). “This is the FDUTPA’s sole 

permissible measure of recovery—the statute expressly excludes claims for personal injury or 

consequential damages to any ‘property other than the property that is the subject of the consumer 

transaction.’” In re Am. Med. Collection Ag. Customer Data Sec. Breach Litig., No. 19-MD-2904, 

2021 U.S. Dist. LEXIS 240360, at *91 (D.N.J. Dec. 16, 2021).

Nevertheless, even if Mr. Josefsberg has not yet suffered “actual damages” in the context of 

FDUTPA, the claim still stands because Mr. Josefsberg is an aggrieved party. See Farmer v. Humana, 

Inc., 582 F. Supp. 3d 1176, 1191 (M.D. Fla. 2022). “[I]n the absence of actual damages, the FDUTPA 

permits any ‘aggrieved party’ to pursue injunctive relief.” Id. “Put plainly, a plaintiff is ‘aggrieved’

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under FDUTPA when the deceptive conduct alleged has caused a non-speculative injury that has 

affected the plaintiff beyond a general interest in curbing deceptive or unfair conduct.” Superior 

Consulting Servs., Inc. v. Shaklee Corp., No. 616CV2001ORL31GJK, 2017 U.S. Dist. LEXIS 101675, 

at *17 (M.D. Fla. June 30, 2017).

In Farmer, which Uber relies upon in its Motion, the court held that the plaintiff’s alleged 

injuries were “sufficient to support a claim for injunctive relief under FDUTPA” despite plaintiff’s 

failure to show actual injury stemming from the defendant’s conduct. 582 F. Supp. 3d at 1192. There, 

the plaintiff was the victim of a data breach and “identifie[d] a series of non-speculative injuries he 

suffered from the data breach, including (i) out-of-pocket expenses associated with the prevention, 

detection, and recovery from identity theft, tax fraud, and/or unauthorized use of [his] PII and PHI, (ii) 

time spent dealing with the consequences of the data breach, and (iii) a substantially increased risk of 

fraud and identity theft.” Id. at 1191-92. 

Like the plaintiff’s injuries in Farmer, the instant Complaint alleges that Mr. Josefsberg has 

suffered non-speculative injuries such as the costs associated with “(i) hiring and paying professionals 

to rectify the incorrect tax filings, (ii) adverse effects on his tax filing status, (iii) filing and pursuing a 

complaint for identity theft with the FTC, and (iv) other adverse effects of identity theft.” Complaint 

at ¶ 121. Additionally, Mr. Josefsberg explicitly seeks “injunctive relief preventing Uber from 

engaging in any of the above-described unfair, unlawful and/or business practices in the future.” Id. at 

¶ 123. Further, the Complaint requests that the Court enter judgment in favor of Mr. Josefsberg, 

seeking, among other items, “injunctive relief requiring Defendants to provide Mr. Josefsberg and all 

Class members continuous credit monitoring services, periodic credit reporting, and credit repair 

services, and requiring Uber to file with the IRS and all applicable tax authorities corrected tax forms 

as to Mr. Josefsberg and all Class members.” Id. at p. 29, ¶ D. Considering the foregoing, Mr. 

Josefsberg has adequately alleged damages under FDUTPA, and his claim should not be dismissed.

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C. Heightened Pleading Standards of Federal Rule of Civil Procedure 9(b).

i. Rule 9(b) Does Not Apply to Mr. Josefsberg’s FDUTPA Claim.

Uber argues that “several” courts within this District have required Rule 9(b)’s heightened 

pleading standard for FDUTPA claims. See Motion at 21. Rule 9(b) states: “In alleging fraud or 

mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, 

intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 

9(b). However, Uber fails to acknowledge that many district courts in the Eleventh Circuit, including 

this District, also hold that the heightened pleading requirements of Rule 9(b) do not apply to claims 

brought under FDUTPA. See, e.g., Harris, 2014 U.S. Dist. LEXIS 189248, at *13 (“Rule 9(b) does 

not apply to FDUTPA claims”); Toback v. GNC Holdings, Inc., No. 13-80526-CIV, 2013 U.S. Dist. 

LEXIS 131135, at *4 (S.D. Fla. Sep. 13, 2013) (same); U.S. Bank Nat'l Ass'n v. Capparelli, No. 13-

80323-CIV, 2014 U.S. Dist. LEXIS 84284, at *17 (S.D. Fla. June 19, 2014) (“Rule 9(b) does not apply 

to FDUTPA claims, [and] its requirements cannot serve as a basis to dismiss those claims.”); and Costa 

v. Kerzner Int'l Resorts, Inc., No. 11-60663-CV-COHN, 2011 U.S. Dist. LEXIS 66921, at *7 (S.D. 

Fla. June 23, 2011) (concluding that “a FDUTPA plaintiff need not meet the Rule 9(b) pleading 

standard for fraud claims”).

The line of cases cited by Uber to support its contention that Rule 9(b)’s heightened pleading 

standard applies to FDUTPA claims each involved claims based in fraud. See Dhtk, Ltd. Liab. Co. v. 

Unknwn, Ltd. Liab. Co., No. 1:19-cv-61627-GAYLES, 2020 U.S. Dist. LEXIS 154591, at *9 (S.D. 

Fla. July 22, 2020) (“The Court also finds that because Counts VII (conversion), VIII (civil theft), and 

IX (FDUPTA) sound in fraud, plaintiff is required to comply with Rule 9(b)”); Llado-Carreno v. 

Guidant Corp., No. 09-20971-CIV, 2011 U.S. Dist. LEXIS 17088, at *14-15 (S.D. Fla. Feb. 22, 2011) 

(“The particularity requirement of Rule 9(b) applies to all claims that sound in fraud, regardless of 

whether those claims are grounded in state or federal law”). Here, Mr. Josefsberg’s FDUTPA claim 

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does not sound in fraud. Nowhere in the Complaint does Mr. Josefsberg allege that he was induced 

by or suffered damages in reliance on Uber’s misrepresentations at issue – essential elements of any 

common law fraud allegation. Cf. Dhtk, 2020 U.S. Dist. LEXIS 154591, at *9-10 (finding plaintiff’s 

FDUTPA claim was sound in fraud, as the complaint alleged “[plaintiff] reasonably relied upon the 

misrepresentations of the Defendants ....”) (emphasis added); Llado-Carreno, 2011 U.S. Dist. LEXIS 

17088, at *14 (finding plaintiff’s FDUTPA claim appeared to allege fraud, which stated that the 

defendant “deceptively and unlawfully induc[ed plaintiff] to purchase and/or have [product] implanted 

in his body”). And, as discussed supra, FDUTPA does not require a plaintiff to contend he “actually 

relied on the alleged practice, but whether the practice was likely to deceive a consumer acting 

reasonably in the same circumstances.” Harris, 2014 U.S. Dist. LEXIS 189248, at *19. 

Because Mr. Josefsberg’s FDUTPA claim does not sound in fraud, Rule 9(b)’s heightened 

pleading standard is not applicable and thus cannot serve as a basis to dismiss Count IV.

ii. Nonetheless, Mr. Josefsberg’s FDUTPA claim meets Rule 9(b)’s 

heightened pleading standards.

Even if the Court determines Rule 9(b) applies to Mr. Josefsberg’s FDUTPA claim, the 

Complaint’s allegations supporting that claim meet the Rule’s heightened pleading standards. Rule 

9(b) provides that “[i]n allegations of fraud or mistake, a party must state with particularity the 

circumstances constituting fraud or mistake,” but that “[m]alice, intent, knowledge, and other 

conditions of a person’s mind shall be averred generally.” Fed. R. Civ. P. 9(b). “Generally speaking, 

a pleading that sounds in fraud is sufficiently presented when the complaint establishes the ‘who, what, 

when, where, and how of the fraud.’” N.A.S. v. Morada-Haute Furniture Boutique LLC, No. 20-

24676-Civ-GAYLES/TORRES, 2022 U.S. Dist. LEXIS 183872, at *25 (S.D. Fla. July 22, 2022)

(citing Ceithaml v. Celebrity Cruises, Inc., 207 F. Supp. 3d 1345, 1353 (S.D. Fla. 2016)); see also

Dhtk, 2020 U.S. Dist. LEXIS 154591, at *10 (“Mr. Josefsberg must identify ‘(1) the precise statements, 

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documents or misrepresentations made; (2) the time and place of and persons responsible for the 

statement; (3) the content and manner in which the statements misled the [P]laintiff; and (4) what the 

Defendants gain[ed] by the alleged fraud.’”). 

Mr. Josefsberg’s Complaint plausibly articulates: the who (“Uber,” Complaint at ¶¶ 46, 118);

the what (Uber’s “false representations that it follows the background check and identity verification 

policies and procedures warrantied on its Driver Screening webpage,” id. at ¶ 118); the when (from at 

least “June 19, 2022” to “September 26, 2022,” id. at ¶¶ 29, 44); and the where and the how (“Uber’s 

website contains an extensive page dedicated to ‘Driver Screening.’ See

https://www.uber.com/us/en/ride/safety/driver-screening/,” id. at ¶ 25; “on [Uber’s] Driver Screening

webpage,” id. at ¶¶ 46, 118). See N.A.S, 2022 U.S. Dist. LEXIS 183872, at *25. 

The Complaint also meets the requirements set forth in Dhtk: (1) the precise statements, 

documents or misrepresentations made include Uber’s “false representations that it follows the 

background check and identity verification policies and procedures warrantied on its Driver Screening

webpage” (see Complaint at ¶ 118); (2) the time the false representations occurred were from at least 

“June 19, 2022” to “September 26, 2022” (id. at ¶¶ 29, 44), the place the false representations occurred 

were on “Uber’s website [that] contains an extensive page dedicated to ‘Driver Screening’ (id. at ¶ 25), 

and the party responsible for such false representations is “Uber” (id. at ¶¶ 46, 118); (3) the content 

and manner in which the statements misled Mr. Josefsberg (and all other consumers acting reasonably) 

include Uber “failing to comply with the background check and identity verification procedures and 

policies listed on its Driver Screening webpage, as it claims to not have any documents or 

correspondence related to any background check or identity verification for the fraudulent account” 

(id. at ¶ 46), “despite its false representations that it follows” such policies and procedures (id. at ¶ 

118); and (4) “Uber allowed an individual to assume Mr. Josefsberg’s identity in driving for Uber” (id. 

at ¶ 119) and through the alleged fraud, “Uber has obtained valuable property, money and/or services 

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at the expense of Mr. Josefsberg” (id. at ¶ 122), including but not limited to Uber’s savings on the costs 

it would have incurred in properly screening and vetting its drivers and the profits derived from the 

driver who assumed Mr. Josefsberg’s identity. See Dhtk, 2020 U.S. Dist. LEXIS 154591, at *10.

The cases Defendant relies on were dismissed because of their wholly deficient complaints, 

the deficiencies of which are not present in Mr. Josefsberg’s Complaint. See id. at *10-11 (dismissing 

plaintiff’s conversion, civil theft, and FDUTPA claims under Rule 9(b) because the complaint

“nowhere stated any precise misrepresentations” and made “no distinction between the Corporate 

Defendants and the Individual Defendants, merely lumping them together in each count and failing to 

distinguish their conduct”); Llado-Carreno, 2011 U.S. Dist. LEXIS 17088, at *15 (dismissing 

plaintiff’s FDUTPA claim because plaintiff’s “general allegation that ‘[defendant’s] actions are 

deceptive and in clear violation of FDUTPA’ (Compl. ¶ 52) is not supported by any specific facts, and 

as a consequence, [plaintiff] does not satisfy the heightened pleading requirement required by Federal 

Rule of Civil Procedure 9(b)”). As demonstrated above, Mr. Josefsberg’s FDUTPA claim is supported 

by detailed and specific facts regarding Uber’s misrepresentations. See Complaint at ¶¶ 25, 29, 46, 

117-19. As such, Mr. Josefsberg has satisfied the heightened pleading requirements under Rule 9(b), 

even if they are inapplicable here, and Mr. Josefsberg’s FDUTPA claim should not be dismissed.

D. Count IV of the Complaint is Not Barred by FDUTPA’s Safe-Harbor Provision.

Uber argues that the Court should dismiss Count IV of the Complaint because “the safe-harbor

provision of FDUTPA insulates Uber against Mr. Josefsberg’s FDUTPA claim” because it “prevent[s]

claims against defendants who have taken actions endorsed by federal or other state law.” Motion at 

22, 23 (citing FDUTPA’s section 501.212(1)). FDUTPA’s so-called “safe harbor” provision states 

that FDUTPA does not apply to “[a]n act or practice required or specifically permitted by federal or 

state law.” § 501.212(1), Fla. Stat.; Kuenzig v. Hormel Foods Corp., 505 F. App’x 937, 939 (11th Cir. 

2013). “The purpose of the safe harbor provision is obvious: it would be unacceptably inconsistent for 

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one statute to penalize conduct mandated elsewhere.” Young v. Cmty. Health Sys., Inc., No. 8:22-cv329-SCB-AEP, 2022 U.S. Dist. LEXIS 237079, at *15 (M.D. Fla. Sep. 16, 2022). 

In furtherance of its argument, Uber asserts that it is a “transportation network compan[y]” 

(“TNC”), and any failure to conduct background checks or review applicants’ driving histories is 

barred under the purview of Florida Statutes § 627.748. See id. at 22-23. While section 627.748 may 

preempt a plaintiff’s FDUTPA claim in limited circumstances, Uber’s conduct at issue is not 

“endorsed” by federal or state law, nor is section 627.748 the exclusive law governing TNCs. Thus, 

FDUTPA’s safe-harbor provision does not bar Mr. Josefsberg’s claim against Uber.

Uber states that TNCs, such as Uber, may “only accept driver applications from individuals 

who provide certain information (such as an address, driver license, and vehicle registration) and to 

conduct background checks and review applicants’ driving histories.” Motion at 23 (citing Fla. Stat. 

§ 627.748(12)(a)). However, it is clear that Uber did not comply with the background check 

requirements of TNCs under section 627.748(12)(a). See Complaint at ¶¶ 42, 46, 117-18. Among 

other conditions, this section provides that TNCs must obtain certain information from prospective 

drivers before allowing them to accept a ride, including information regarding their driver licenses and 

motor vehicle registrations. § 627.748(12)(a), Fla. Stat. In addition, the statute specifically requires 

that TNCs maintain “[i]ndividual records of TNC drivers for at least 1 year after the date on which the 

TNC driver’s relationship with the TNC ends.” § 627.748(15)(b), Fla. Stat. 

Here, the Complaint alleges that Uber admitted it did not possess any documents related to the 

background check or identity verification it purportedly conducted on the person who applied to be a 

driver under Mr. Josefsberg’s name. See Complaint at ¶¶ 42, 46. Under section 627.748(12)(a), such 

documentation should have included information reflecting the driver license and motor vehicle 

registration reviewed by Uber when approving the identity thief’s account. Further, Uber admitted 

that it does not possess any of the documents related to the applicant’s background check or identity 

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verification, as required under section 627.748(15)(b). See id. at ¶ 42. By failing to collect and retain 

the applicant’s driver license or motor vehicle registration information, Uber’s conduct does not 

amount to “[a]n act or practice required or specifically permitted by federal or state law.” See Fla. Stat. 

§ 501.212(1). Rather, Uber’s conduct is a direct violation of section 627.748(12)(a). FDUTPA’s safeharbor provision does not save Uber here.

The cases cited by Uber to support its argument are inapposite. The Young and Eirman

plaintiffs both alleged that defendants complied with federal law yet attempted to impose on defendants 

legal obligations greater than those required by federal law. See Young, 2022 U.S. Dist. LEXIS 

237079, at *15 (plaintiff “essentially asserts that the disclosure required by federal law does not require 

enough of Defendants and that Defendants are in violation of FDUTPA for failing to do more than is 

required by federal law”); Eirman v. Olde Disc. Corp., 697 So. 2d 865, 866 (Fla. 4th DCA 1997)

(“Receipt of order flow payments was permitted by federal law during the time period at issue”).5

 That 

is not the case here. Mr. Josefsberg’s FDUTPA claim is rooted in the fact that Uber conducted itself 

in a manner that is in direct violation of section 627.748. In addition, neither Young nor Eirman

involved FDUTPA claims for conduct that was allegedly permitted by Chapter 627, or any other 

Florida law for that matter, as is the case here. 

As Uber acknowledged, “[s]ection 627.748 did not impose a requirement that Uber 

independently verify the identity of the applicant in order to weed out persons who are assuming the 

identity of another person.” Motion at 23. Mr. Josefsberg’s FDUPTA claim falls outside the scope of 

any safe harbor provisions because Mr. Josefsberg is not arguing that Uber needed to verify Mr. 

Josefsberg’s identity for driving purposes but for the purpose of running a background check. Thus, 

5 The Eirman Court also focused on the issue of whether federal law (the Securities Exchange Act 

of 1934) preempted state law by implication. The portion of the Eirman decision relating to 

dismissing the plaintiff’s FDUTPA claim, upon which Uber relies, is a mere three sentences, cites

no caselaw, and provides little to no instructive analysis.

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allowing Mr. Josefsberg’s FDUTPA claim to stand would not subject Uber to penalties mandated 

under Section 627.748. Cf. Young, 2022 U.S. Dist. LEXIS 237079, at *17-18. 

Further, even though “[s]ection 627.748 did not impose a requirement that Uber independently 

verify the identity of the applicant in order to weed out persons who are assuming the identity of 

another person,” Uber has voluntarily taken on that task. See Motion at 23. As alleged in the 

Complaint, Uber claims to follow the identity verification policies and procedures warrantied on its 

Driver Screening webpage. SeeComplaint at ¶ 118. Further, as alleged in theComplaint and discussed 

supra, Uber’s background check and identity verification policies and procedures warrant the 

following:

Assuming someone else’s identity is prohibited. Drivers are

periodically asked to take a photograph of themselves, which we match

against their on-file identification to help make sure the right driver is

behind the wheel.

Id. at ¶ 25(d). Despite making this representation, Uber did not verify the identity of the person who 

used Mr. Josefsberg’s identity to become an Uber driver. Instead, Uber approved that person’s 

application to become a driver, permitted him to drive for Uber under Mr. Josefsberg’s name and social 

security number, and allowed him to continue to do so, unabridged, until well after Mr. Josefsberg, on 

August 15, 2022, notified Uber of the fraudulent account and demanded that Uber cancel all Uber 

driver accounts using his name. See id. at ¶ 33. In fact, it took another approximately six weeks, until 

September 26, 2022, for Uber to deactivate that account and confirm to Mr. Josefsberg that it had done 

so. See id. at ¶ 44. Thus, the safe harbor analysis requires more than a determination of whether Uber 

abided by the requirements of TNCs under section 627.748(12)(a); it requires consideration of Uber’s 

misleading representations that it requires photograph verification of its drivers, among other things, 

upon which Mr. Josefsberg’s FDUTPA claim is based, which do not fall under the safe-harbor 

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provision of FDUTPA’s section 501.212(1). As such, Mr. Josefsberg’s FDUTPA claim should not be 

dismissed. 

CONCLUSION

 WHEREFORE, Plaintiff, Damian R. Josefsberg, individually and on behalf of all others 

similarly situated, respectfully requests that this Court deny in its entirety Defendant Uber 

Technologies, Inc.’s Motion to Dismiss Plaintiff’s Class Action Complaint and grant any other relief 

the Court deems just and proper.6

Respectfully submitted this 17th day of March, 2023.

DAMIAN | VALORI | CULMO

 Counsel for Damian Josefsberg

1000 Brickell Avenue, Suite 1020

 Miami, Florida 33131

Telephone: (305) 371-3960

 Facsimile: (305) 371-3965

 

 /s/ Kenneth Dante Murena 

 Kenneth Dante Murena, Esq.

Florida Bar No. 147486 

 E-mail: kmurena@dvllp.com

CERTIFICATE OF SERVICE

 

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via this 

Court’s CM/ECF filing system on this 17th day of March, 2023, on all counsel or parties who have 

appeared in the above-styled action.

/s/ Kenneth Dante Murena 

Kenneth Dante Murena, Esq.

 Florida Bar No. 147486

6 In the event the Court is inclined to grant Checkr’s Motion as to any Count, Mr. Josefsberg would 

respectively request leave to amend such Count(s) to address any deficiencies the Court may 

identify.

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