JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

R. Scott Erlewine, State Bar No. 095106 

Nicholas A. Carlin, State Bar No. 112532 

Brian S. Conlon, State Bar No. 303456 

Pola C. Stein, State Bar No. 278791________. 

PHILLIPS, ERLEWINE, GIVEN & CARLIN LLP 

39 Mesa Street, Suite 201 - The Presidio 

San Francisco, CA 94129 

Telephone: 415-398-0900 - Fax: 415-398-0911 

Email: rse@phillaw.com 

 nac@phillaw.com 

 bsc@phillaw.com 

 pcs@phillaw.com 

 

Attorneys for Plaintiff 

COOLEY LLP 

Patrick E. Gibbs (SBN 183174) (pgibbs@cooley.com) 

Wendy J. Brenner (SBN 198608) (brennerwj@cooley.com) 

Alli S. Davidson (SBN 267964) (adavidson@cooley.com) 

Michelle Ton (SBN 300942) (mton@cooley.com) 

Addison Litton (305374) (alitton@cooley.com) 

3175 Hanover Street 

Palo Alto, CA 94304-1130 

Telephone: (650) 843-5000 

Facsimile: (650) 849-7400 

Attorneys for Defendant UBER TECHNOLOGIES, INC. 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

LENZA H. MCELRATH III, individually 

and on behalf of all others similarly situated, 

 

 Plaintiff, 

vs. 

UBER TECHNOLOGIES, INC. 

 Defendant. 

Case No. 3:16-cv-07241-JSC 

CLASS ACTION 

JOINT CASE MANAGEMENT 

STATEMENT 

 

Date: March 23, 2017 

Time: 9:00 a.m. 

Judge: Hon. Jacqueline S. Corley 

Courtroom: F, 15th Flr.

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 1 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

 Pursuant to Federal Rule of Civil Procedure 26(f) and Civil Local Rule 16-9, the 

undersigned counsel for Plaintiff Lenza H. McElrath III (“Plaintiff”) and Defendant Uber 

Technologies, Inc. (“Defendant” or “Uber”) hereby submit this Joint Case Management 

Statement. 

I. JURISDICTION AND SERVICE 

 There are no issues pending concerning personal jurisdiction or venue and no parties 

remain to be served. 

A. Plaintiff’s Positions

 Plaintiff asserts that this Court has subject matter jurisdiction over the individual and class 

claims asserted in this action: a) under 28 U.S.C. § 1332(a)(1), because Plaintiff and Uber are 

citizens of different States and the amount in controversy exceeds $75,000, exclusive of interest 

and costs; and b) under the Class Action Fairness Act (28 U.S.C. § 1332(d)), because the amount 

in controversy exceeds $5,000,000, exclusive of interest and costs, there are at least 100 class 

members, and at least one member of the proposed class is a citizen of a state different than 

Defendant. 

B. Defendant’s Position 

 Defendant does not contest that this Court has subject matter jurisdiction over the 

individual and class claims asserted in this action under 28 U.S.C. § 1332(a)(1), because Plaintiff 

and Uber are citizens of different States and the amount in controversy, based on the face of the 

pleadings, exceeds $75,000, exclusive of interest and costs. However, it is Defendant’s position 

that this Court does not have subject matter jurisdiction over Plaintiff’s individual claims because 

they are subject to the Arbitration Agreement (described further below), and this Court will not 

have subject matter jurisdiction over Plaintiff’s class claims if the Ninth Circuit’s decision in 

Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), cert. granted (U.S. Jan. 13, 2017) is 

overturned. 

 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 2 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

II. FACTS 

 A. Plaintiff’s Position 

 Defendant Uber devised a fraudulent scheme to recruit highly sought software engineers 

and others by promising in its standardized Employment Agreements the most valuable type of 

stock options (Incentive Stock Options – “ISOs”). Specifically, the Employment Agreement 

stated that “Subject to the approval of the Company’s Board of Directors (the “Board”), the 

Company shall grant you a stock option covering [stated number] shares of the company’s 

common stock (The Option”),” and that “the Option will be an incentive stock option to the 

maximum extent allowed by the tax code” (emphasis added). The Employment Agreement 

further specified a four-year vesting/exercisability schedule which guaranteed the ISOs would 

receive maximum ISO treatment: 

“The Option shall vest and become exercisable at the rate of 25% of the total 

 number of option shares after the first 12 months of continuous service and the 

 remaining option shares shall become vested and exercisable in equal monthly 

 installments over the next three years of continuous service.” (emphasis added)

Compl., ¶¶ 15-16, Ex. A. This is because the Internal Revenue Code imposes a $100,000 limit on 

the total aggregate fair value of ISOs that are exercisable by an employee during any calendar 

year and deems the excess over $100,000 to be NSOs. 26 U.S.C. §422(d). By specifying a fouryear exercisability schedule, the employee was guaranteed that up to $400,000 (4 x $100,000) of 

the options would be guaranteed to receive ISO treatment, rather than up to a maximum $100,000 

if they were all exercisable within one year. Compl., ¶¶13-14. 

 Yet, months after employees started work, Uber breached its Employment Agreements 

by systematically giving each employee a standardized Notice of Stock Option Grant, which 

confirmed that the employee had been granted the number of Incentive Stock Options promised 

in the Employment Agreement, but contained a dramatically different exercisability clause: 

“This Option shall be exercisable in whole or in part six months after the Date of Grant.” 

Compl., ¶ 16. This new six-month exercisability schedule was directly contrary to the four-year 

exercisability schedule specified in the Employment Agreement, and had the effect of making 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 3 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

all of the options exercisable during one calendar year, thereby resulting in Uber disqualifying 

all of the options above $100,000 from ISO treatment, demoting the rest to Non-Qualified Stock 

Options – NSOs. This reclassification has also permitted Uber to take millions of dollars of 

payroll tax deductions which it otherwise would not be entitled to take, because NSOs are 

treated as ordinary income. Compl., ¶¶ 13-14, 17-23a. 

 The financial advantages of ISOs over NSOs are dramatic. An ISO is generally only 

taxed upon sale of the stock (not upon exercise of the option) and is also subject to favorable 

capital gains treatment. 26 U.S.C. §§ 421, 422. In contrast, NSOs are taxed much earlier – at the 

time of exercise – and at the employee’s ordinary income tax rate upon exercise. 26 U.S.C. 

§83(a). Compl., ¶¶ 11-13. For Uber’s employees, this tax is many times the strike price and can 

total hundreds of thousands of dollars, meaning that NSOs – unlike ISOs -- impede an employee’s 

ability to exercise the option depending on whether he or she has the financial resources to pay 

the tax. Compl., ¶¶ 23b-c. 

 In addition, after employees started work, Uber systematically imposed severe limits on 

the time frames that employees could exercise their options (which Uber terms “Trading 

Windows”), in further derogation of promises contained in its Employment Agreements. As a 

result, Uber employees were and are unable to exercise their options at the designated times, and 

some employees who left the Company were unable to exercise their remaining vested options at 

all because the Trading Windows were closed for the period of time they were permitted to 

exercise following their departure. Compl., ¶¶ 24-25. 

 Plaintiff is a senior software engineer employed by Uber who was victimized by this 

scheme and breaches of contract. In reliance upon Uber’s promise in the employment agreement 

that Plaintiff would receive 20,000 ISOs, in September 2014 Plaintiff accepted employment with 

Uber and re-located from the State of Washington to San Francisco. When Uber issued the grant 

of stock options to Plaintiff several months after he started his employment, Uber unilaterally 

changed the exercisability schedule and thereby reclassified 70% (almost 14,000) of those options 

as NSOs. Compl., ¶¶ 26-33. As a result of the requirement that an employee pay taxes on NSOs 

at the time of exercise, it was financially impracticable for Plaintiff to exercise all of his vested 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 4 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

“NSO” options. In addition, Uber refused to recognize several option exercises Plaintiff did 

make, asserting that the “Trading Window” was closed. Compl., ¶¶ 11-13. 

 Plaintiff brings this lawsuit on behalf of himself and the following classes and subclasses 

of similarly situated persons: 

UBER INCENTIVE STOCK OPTION CLASS: All current and former employees of 

Uber during the four years prior to the filing of the Complaint, who were promised ISOs 

for Uber Stock in their Employment Agreements but some portion of whose options were 

deemed NSOs due to Uber imposing a shorter exercisability schedule in the Notice of 

Stock Option Grant than contained in the Employment Agreements. 

UBER TRADING WINDOW CLASS: All current and former employees of Uber during 

the four years prior to the filing of the Complaint, who were prevented by Uber through 

the imposition of Trading Windows from exercising stock options for Uber stock in 

accordance with the timing of the exercisability schedule set forth in the Employment 

Agreements. 

RELOCATION SUBCLASS: All current and former members of the Uber Incentive 

Stock Option Class and/or Uber Trading Window Class who, during the four years prior 

to the filing of the Complaint, relocated their residence to work for Uber. Compl., ¶ 34. 

 B. Defendant’s Position 

On September 3, 2014, Plaintiff accepted an offer of employment from Uber (the 

“Employment Agreement”), which stated that “[s]ubject to the approval of the Company’s Board 

of Directors,” he would receive “a stock option covering 20,000 shares” of Uber’s common stock 

(the “Option”). The Employment Agreement explained that the Option would be “an incentive 

stock option to the maximum extent allowed by the tax code,” and expressly stated that the Option 

would be “subject to the other terms and conditions set forth in the Company’s 2013 Stock Plan . 

. . and in the Company’s standard form of Stock Option Agreement.” 

Shortly after commencing employment with Uber, Plaintiff received a notice of stock 

option grant from Uber (the “Notice”), stating that his Option had been granted. Consistent with 

the Employment Agreement, the Stock Option Agreement provided Plaintiff with an Option to 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 5 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

purchase 20,000 shares, designated as ISOs to the maximum extent permitted under the Internal 

Revenue Code.

1 Plaintiff’s Stock Option Agreement also provided that his Option would be “early 

exercisable” – that is, all of the shares subject to the Option (whether vested or not) could be 

exercised “in whole or in part” just six months after the date of the grant. As a result, all of the 

shares were exercisable in a single year. The aggregate value of such shares exceeded $100,000. 

As such, the $100,000 limit imposed by the Internal Revenue Code resulted in a portion of the 

shares being deemed ISOs (that portion with an aggregate value under $100,000) and the 

remaining shares deemed NSOs (that portion in excess of $100,000). 

The Employment Agreement also included a broad arbitration agreement (the “Arbitration 

Agreement”) requiring that any claims arising out of his employment with Uber, including those 

related to equity, be submitted to binding arbitration. 

In May 2016, Plaintiff filed a complaint in San Francisco Superior Court asserting claims 

covered by the Arbitration Agreement, including breach of contract and misrepresentation, arising 

from the same set of facts alleged in this case. See Complaint, McElrath III v. Uber Techs., Inc., 

No. CGC-16-551748 (Cal. Super. Ct., San Francisco Cnty., May 2, 2016). One day before the 

scheduled hearing on Uber’s motion to compel arbitration of Plaintiff’s claims, Plaintiff 

unilaterally amended his complaint to remove all claims covered by the Arbitration Agreement, 

leaving only a cause of action under the Private Attorney General Act (“PAGA”). See Amended 

Complaint, McElrath III v. Uber Techs., Inc., No. CGC-16-551748 (Cal. Super. Ct., San Francisco 

Cnty., July 13, 2016). McElrath’s PAGA claim was premised on Uber’s alleged violations of 

 

1 The Internal Revenue Code does not permit employers to issue unlimited ISOs. Rather, the 

Internal Revenue Code imposes a $100,000 limit on the total aggregate fair value of ISOs that are 

exercisable by an employee within a calendar year. 26 U.S.C. § 422(d). Under this rule, if the 

value of option shares that are exercisable by an employee in any given year exceeds $100,000, 

the shares in excess of the $100,000 limit cannot legally be ISOs – those must be NSOs. Unlike 

ISOs, NSOs are taxed at the time of either grant or exercise, and are subject to capital gains tax 

upon the sale of the stock.

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 6 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

three California Labor Code sections. (Id.) On December 9, 2016, the state court sustained Uber’s 

demurrer as to two of the three alleged labor code violations.2

Plaintiff responded to the state court’s order largely sustaining Uber’s demurrer by filing 

an overlapping, duplicative class action against Uber in the United States District Court, Northern 

District of California, asserting nearly identical claims from Plaintiff original complaint filed in 

the state action. On February 10, 2017, Uber filed a motion to compel arbitration of Plaintiff’s 

individual claims and stay the class claims, or alternatively, stay of the entire proceeding pending 

the Supreme Court’s review of Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), cert. 

granted (U.S. Jan. 13, 2017). (See Dkt. 18.) Uber’s motion is scheduled for hearing on March 

23, 2017 at 9 a.m. before this Court. 

III. LEGAL ISSUES 

 A. Plaintiff’s Positions 

 Plaintiff’s Complaint (ECF No.#1) states the following claims: (i) breach of contract, (ii) 

breach of implied covenant of good faith and fair dealing, (iii) false promise, (iv) intentional 

misrepresentation, (v) violation of California Labor Code § 970, and (vi) violation of California 

Business & Professions Code §§ 17200 et seq. (the “UCL”). Plaintiff prays in the Complaint for 

compensatory, statutory, and punitive damages, restitution and disgorgement, specific 

performance, injunctive relief and attorneys’ fees. 

 The principal issues to be resolved include: (a) whether Uber breached the employment 

agreements of Plaintiff and the other purported class members by promising ISOs to the maximum 

extent permitted by the specified exercisability schedule and then later imposing an accelerated 

exercisability schedule which Uber claims disqualified all but $100,000 of the options from ISO 

treatment, and also by later imposing Trading Windows in direct conflict with the exercisability 

schedules specified in the Employment Agreements; (b) whether Uber knowingly misled Plaintiff 

 

2

 On February 6, 2017, the state court granted the parties’ request to stay the action pending the 

entry of final judgment in this Court (not including any appeal), or further order of the state court. 

Order, McElrath III v. Uber Techs., Inc., No. CGC-16-551748 (Cal. Super. Ct., San Francisco 

Cnty., Feb. 6, 2017). 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 7 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

and purported class members about these matters, (c) the extent to which Plaintiff and purported 

class members were damaged by Defendant’s misrepresentations and breaches of contract, (c) the 

extent to which Defendant benefitted from its misrepresentations and breach of contract, (e) the 

validity and enforceability of the purported arbitration agreements and class action waivers, and 

(f) the propriety of class certification. 

 B. Defendant’s Position 

 Defendant anticipates the following disputed points of law, among others, will arise in this 

case: (a) whether Plaintiff may assert a claim for breach of contract; (b) whether Plaintiff may 

assert a claim for breach of implied covenant of good faith and fair dealing; (c) whether Plaintiff 

may assert a claim for false promise; (d) whether Plaintiff may assert a claim for intentional 

misrepresentation; whether Plaintiff may assert a claim for violation of California Labor Code § 

970; (e) whether Plaintiff may assert a claim for violation of California Business & Professions 

Code §§ 17200 et seq.; (f) whether Plaintiff’s claims are subject to the Arbitration Agreement and 

whether Plaintiff may maintain a class action; (g) whether a class may be certified; and (h) whether 

Plaintiff is entitled to compensatory, statutory, and punitive damages, restitution and 

disgorgement, specific performance, injunctive relief and attorneys’ fees. 

IV. MOTIONS 

 A. Pending Motions 

Currently pending before this Court is Uber’s Motion to Compel Arbitration of Plaintiff’s 

Claims and Stay Class Claims, or in the alternative, stay entire proceeding, set for hearing on 

March 23, 2017. ECF #18. Plaintiff filed his opposition to Defendant’s Motion on February 24, 

2017, and Defendant filed its reply in further support of the Motion on March 3, 2017. ECF ## 20, 

23. 

B. Anticipated Motions 

 a. Plaintiff’s Position 

At this time Plaintiff anticipates moving for summary judgment and for Class 

certification. 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 8 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

 b. Defendant’s Position 

 Defendant anticipates that it may move for summary judgment, and intends to oppose 

any motion for summary judgment and motion for class certification.

V. AMENDMENT OF PLEADINGS 

 A. Plaintiff’s Position 

 Plaintiff may seek to amend the pleadings based upon additional information obtained 

through stipulations, disclosures or discovery or otherwise and reserves the right to do so as the 

case progresses. 

B. Defendant’s Position 

 Defendant reserves the right to oppose any amendments to the pleadings that Plaintiff is 

not entitled to as a matter of right. 

VI. EVIDENCE PRESERVATION 

 A. Plaintiff’s Position 

 The parties have met and conferred regarding reasonable and proportionate steps to 

preserve evidence relevant to the issues reasonably evident in this action and shall follow the 

Northern District of California Guidelines for the Discovery of Electronically Stored 

Information. 

B. Defendant’s Position 

 Defendant’s counsel has instructed Uber regarding its evidence preservation obligations, 

and Uber has implemented document preservation protocols. 

VII. DISCLOSURES 

The parties had their Rule 26(f) conference on March 2, 2017. The parties intend to fully 

and timely comply with the initial disclosure requirements of Fed. R. Civ. P. 26(a)(1)(C). The 

parties will exchange initial disclosures by March 22, 2017. 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 9 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

VIII. DISCOVERY 

 A. Discovery Taken To Date 

 a. Plaintiff’s Position 

 Discovery has not yet commenced. Plaintiff contends that discovery should commence 

immediately and that appropriately crafted procedures, as recommended in the Manual for 

Complex Litigation, also be employed. 

 b. Defendant’s Position 

Defendant contends that discovery should not proceed until after the Court has decided 

the pending motion to compel arbitration of Plaintiff’s individual claims and stay the class 

claims, or alternatively, stay the entire proceeding. Discovery should not start until after that 

time because the Court’s decision may have the effect of (1) moving the venue of the case to 

arbitration, and limiting the scope to just Plaintiff’s individual claims; or (2) staying the case in 

its entirety pending the Supreme Court’s decision in Morris. 

 B. Scope of Anticipated Discovery 

 a. Plaintiff’s Position 

Appropriate subjects for discovery include: Defendant’s hiring policies and procedures; 

Defendant’s recruitment strategies, policies and procedures; Defendant’s policies and 

procedures concerning employee stock option grants; Defendant’s policies and procedures 

concerning Trading Windows; Defendant’s policies and procedures concerning stock option 

grant exercisability and vesting schedules; the process followed by Defendant’s Board of 

Directors in deciding whether to approve and approving employment agreements, employee 

stock option grants, and notices of stock option grants; Defendant’s adoption and use of a 

standardized employment agreement containing a four-year exercisability/vesting schedule; 

Defendant’s adoption and use of a notice of stock option grant containing an accelerated 

exercisability schedule; Defendant’s knowledge and communications concerning the $100,000 

annual limit for ISOs; Defendant’s tax filings and other financial records; the identities of all 

individuals falling into any of the above-described Classes or Subclass; Defendant’s 

communications with all individuals falling into any of the above-described Classes or Subclass; 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 10 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

Defendant’s agreements with all individuals falling into any of the above-described Classes or 

Subclass; Defendant’s employee personnel files; Defendant’s records of employee stock option 

grant exercise attempts and exercises; Defendant’s loans to employees to cover stock option 

exercises. 

 b. Defendant’s Position 

 Defendant contends that it is premature to decide the scope of discovery, and that the 

scope should not be defined until after the Court has decided the pending motion to compel 

arbitration of Plaintiff’s individual claims and stay the class claims, or alternatively, stay the 

entire proceeding for the reasons stated in Section VIII.A(b), above. 

 C. Electronically-Stored Information 

 The Parties anticipate that discoverable information in this action will primarily be in 

electronic form. While the most effective and proportional methods of production of 

electronically stored information (“ESI”) cannot yet be determined, the Parties agree to 

cooperate and confer about these issues if, and as, discovery proceeds. 

D. Privilege or Other Protections 

 The Parties expect that discovery sought will involve confidential information. 

Accordingly, the Parties will attempt in good faith to agree to, and then obtain Court approval 

of, stipulated protective orders to protect certain confidential information in accordance with the 

Northern District’s Model Agreement for Stipulated Protective Order for Standard Litigation. 

E. Limitations or Modifications of Discovery 

The Parties do not presently seek any modifications or limitations to the discovery 

provisions set forth in the Federal Rules of Civil Procedure, other than Defendant’s position 

stated above with respect to the timing of discovery. 

IX. CLASS ACTIONS 

 A. Plaintiff’s Position 

Plaintiff brings this class action under Federal Rules of Civil Procedure 23(a)23(b)(1), 

23(b)(2) and/or 23(b)(3) for himself and appropriate class(es) of similarly-situated persons as 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 11 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

11

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

stated in Section 2a above and presently defined in the Complaint (at ¶34), or as further defined 

in any subsequent amendments thereto. 

The prospective Class consists of at least hundreds of Uber employees who were 

similarly affected by Defendant’s described conduct. 

There are many questions of law common to Plaintiff and purported Class Members, 

including, inter alia: whether Defendant entered into written Employment Agreements which 

promised Class Members that they would be granted ISOs to the maximum extent permitted by 

the tax code and under a four-year exercisability schedule; whether Defendant breached the 

Employment Agreements by imposing an accelerated exercisability schedule thereby causing 

many of the ISOs to be deemed NSOs by Defendant; whether Defendant breached the 

Employment Agreements by imposing Trading Windows which prevented Class Members from 

exercising options at the times permitted under the Employment Agreements; whether 

Defendant knowingly intended to deceive Plaintiff and purported Class Members by the 

foregoing conduct; whether Plaintiff and purported Class Members re-located their residences in 

reliance upon Defendant’s promises. 

The questions of law and fact common to Class Members predominate over any 

questions affecting only individual members and a class action is superior to all other available 

methods for the fair and efficient adjudication of this controversy. Moreover, Plaintiff’s claims 

are typical of the claims of all other Class Members, and Plaintiff will fairly and adequately 

represent the interests of the other Class Members because Plaintiff has retained counsel with 

substantial experience in prosecution complex litigation and class actions. Plaintiff and his 

counsel are committed to prosecuting this action on behalf of Class Members and have the 

financial resources to do so. 

Plaintiff intends to seek certification of the class(es) and subclass in accordance with the 

schedule outlined below. 

B. Defendant’s Position 

 Defendant believes that the class action waiver in the Arbitration Agreement Plaintiff 

signed with Uber is enforceable and precludes Plaintiff’s class claims. (See Dkt. 20). Should 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 12 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

the Court deny Defendant’s Motion to Compel Arbitration of Plaintiff’s Individual Claims and 

Stay Class Claims, or in the Alternative, Stay Entire Proceeding, Defendant will oppose any 

motion to certify a class. 

X. RELATED CASES 

McElrath v. Uber Technologies, Inc., Case No. CGC-16-551748, Superior Court of the 

State of California, County of San Francisco, filed May 2, 2016. 

XI. RELIEF 

 A. Plaintiff’s Position 

 Plaintiff seeks the following relief on behalf of himself and the putative Class: (i) actual, 

compensatory, and statutory damages; (ii) statutory double damages; (iii) punitive damages; (iv) 

specific performance; (v) injunctive relief; (vi) imposition of constructive trusts and restitution 

and disgorgement of any benefits wrongfully received or obtained by the Defendant; (vii) 

declaratory relief; (viii) pre- and post-judgment interest at the highest applicable legal rates; (ix) 

attorneys’ fees and litigation expenses incurred through trial and any appeals; (x) costs of suit, 

and; (xi) such other and further relief that this Court deems just and proper. 

B. Defendant’s Position 

 Plaintiff’s claims have no merit, and he is not entitled to relief of any kind. 

XII. SETTLEMENT AND ADR 

 The parties agree that early private mediation may be appropriate in this case and intend 

to file a Stipulation and Proposed Order Selecting ADR Process. 

XIII. CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES 

The Parties have consented to have United States magistrate judge Jacqueline Scott 

Corley conduct all further proceedings in this case, including trial and entry of final judgment. 

XIV. OTHER REFERENCES 

The parties do not identify any potential references at this time. 

XV. NARROWING OF ISSUES 

A. Plaintiff’s Position 

Plaintiff does not believe issue-narrowing will be helpful in this case. 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 13 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

13

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

 B. Defendant’s Position 

 Defendant respectfully submits that it is premature to consider agreement to narrow 

issues for trial. 

XVI. EXPEDITED TRIAL PROCEDURE 

At this time, the Parties do not believe this case is appropriate for expedited trial 

procedures. 

XVII. SCHEDULING 

A. Plaintiff’s Position 

Plaintiff proposes the following schedule: 

 Deadline for amending pleadings May 30, 2017 

 Designation of experts November 9, 2017 

 Fact discovery cut-off November 17, 2017 

 Hearing of dispositive motions January 15, 2018 

 Expert discovery cut-off February 2, 2018 

 Pre-trial conference May 2, 2018 

 Trial May 9, 2018

 B. Defendant’s Position 

 Defendant disagrees that the schedule set forth in Plaintiff’s position is appropriate, but 

in any event, respectfully submits that it is premature to consider a case schedule until 

Defendant’s Motion to Compel Arbitration of Plaintiff’s Individual Claims and Stay Class 

Claims, or in the Alternative, Stay Entire Proceeding is decided, as the Court’s decision on that 

motion may affect the scope and/or timing of this case. 

XVIII. TRIAL 

A. Plaintiff’s Position 

Plaintiff estimates an expected length of trial of 3-4 weeks. 

 B. Defendant’s Position

 Defendant respectfully submits that it is premature to estimate an expected length of the 

trial. 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 14 of 15
JOINT CASE MANAGEMENT CONFERENCE STATEMENT – Case No. 3:16-cv-07241-JSC 

14

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHILLIPS, ERLEWINE, GIVEN 

& CARLIN, LLP

39 Mesa Street, Suite 201 

San Francisco, CA 94129 

(415) 398-0900

XIX. DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS 

 The Parties have filed Certificates of Interested Entities or Persons. 

 Pursuant to Federal Rule of Civil Procedure 7.1, Plaintiff states that Plaintiff and the 

putative class members (i) have a financial interest in the subject matter in controversy or in a 

party to the proceeding, or (ii) have a non-financial interest in that subject matter or in a party 

that could be substantially affected by the outcome of the proceeding: 

Pursuant to Federal Rule of Civil Procedure 7.1, Uber states that it is a privately-held 

corporation with no parent corporation or publicly-held corporation that owns 10 percent or 

more of its stock. Pursuant to Civil Local Rule 3-15, Uber certifies that as of this date no such 

interest is known other than that of the named parties to the action. 

XX. OTHER ISSUES 

 The Parties do no currently anticipated any other issues. 

Dated: March 16, 2017 PHILLIPS, ERLEWINE, GIVEN & CARLIN LLP 

 By: /s/ R. Scott Erlewine 

 R. Scott Erlewine 

 Attorneys for Plaintiff 

Dated: March 16, 2017 COOLEY LLP 

 By: /s/ Patrick E. Gibbs 

 Patrick E. Gibbs 

 Attorneys for Defendant 

 Uber Technologies, Inc. 

ATTESTATION 

 I, R. Scott Erlewine, am the ECF user whose identification and password is being used to 

file the instant document. Pursuant to Civil Local Rule 5-1(i)(3), I hereby attest that all counsel 

whose electronic signatures appear above provided their authority and concurrence to file this 

document. 

 /s/ R. Scott Erlewine 

 R. Scott Erlewine 

Case 3:16-cv-07241-JSC Document 25 Filed 03/16/17 Page 15 of 15