United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MARTIN DULBERG, individually and on

behalf of all others similarly situated,

Plaintiff,

 v.

UBER TECHNOLOGIES, INC., and

RASIER, LLC,

Defendants. /

No. C 17-00850 WHA

ORDER GRANTING MOTION

FOR CLASS CERTIFICATION

INTRODUCTION

In this putative class action for breach of contract, plaintiff moves to certify a class. The

motion is GRANTED.

STATEMENT

Plaintiff Martin Dulberg asserts a single breach of contract claim against defendants

Uber Technologies, Inc., and its subsidiary Rasier LLC (collectively, “Uber”), on behalf of a

putative class of Uber drivers. Dulberg signed up as a driver for the UberX program in May

2014 and as a driver for the UberSelect program in February 2015. A “Technology Services

Agreement” dated December 11, 2015 (the “driver agreement”), governed the compensation

scheme between Uber and its drivers during the relevant time period. 

The terms of the driver agreement have been described in a prior order (Dkt. No. 52)

and need not be repeated in detail here. In brief, under the driver agreement, drivers like

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 After Dulberg filed his amended complaint on May 15 but before Uber filed its motion to dismiss on

June 19, Uber updated the fee addendum to the driver agreement to calculate driver compensation using actual

as opposed to estimated time and distance amounts, and to shift away from percentage-based Service Fees. The

driver agreement now calculates Service Fees as “the Rider Payment minus: (a) the Fare; (b) Tolls; (c) any

other fees retained by us (e.g., booking fee); and (d) applicable taxes and surcharges” (Dkt. No. 67-4).

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Dulberg could charge passengers (1) a “Fare” calculated based on the distance and time of the

ride, (2) Uber’s “Booking Fee,” and (3) any applicable tolls, taxes, or fees for the ride. Uber

collected these amounts from passengers on Dulberg’s behalf and withheld (1) its Booking Fee

plus (2) a “Service Fee” equal to 20 percent of each UberX ride and 28 percent of each

UberSelect ride before remitting anything to Dulberg.

In late 2016, Uber’s policy changed from calculating the price for each ride after the

ride to calculating the price upfront before the ride. This new “upfront pricing” policy,

according to Dulberg, violated the driver agreement because Uber used aggressively estimated

time and distance amounts to calculate costs to passengers but continued to use actual time and

distance amounts to calculate driver compensation, keeping the difference for itself. This,

according to Dulberg, effectively altered the fixed percentage-based breakdown of Fares

between drivers’ remittances and Uber’s Service Fees, contrary to the driver agreement.

A prior order denied Uber’s motion to dismiss Dulberg’s claim (ibid.). Discovery

followed. Uber produced a spreadsheet that identified ride-by-ride data over the time period in

question for over nine thousand drivers who opted out of arbitration (see Dkt. No. 66-8). Based

on this data, Dulberg filed a motion to certify a class of “[a]ll natural persons nationwide who

(1) worked as a driver for UberX or UberSelect; (2) opted out of arbitration; and (3) transported

a passenger who was charged an upfront fare before they accepted Uber’s updated fee

addendum, which it issued on May 22, 2017” (Dkt. No. 67 at 7). This order follows full

briefing and oral argument.1

ANALYSIS

1. LEGAL STANDARDS.

Federal Rule of Civil Procedure 23(a) provides, “One or more members of a class may

sue or be sued as representative parties on behalf of all members only if: (1) the class is so

numerous that joinder of all members is impracticable; (2) there are questions of law or fact

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common to the class; (3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and (4) the representative parties will fairly and adequately

protect the interests of the class.” Rule 23(b) sets forth three conditions under which, if the

prerequisites of Rule 23(a) are satisfied, a class action may be maintained. Class certification is

appropriate if a plaintiff meets all the prerequisites of Rule 23(a) and at least one condition of

Rule 23(b). Abdullah v. United States Sec. Assocs., Inc., 731 F.3d 952, 956–57 (9th Cir. 2013).

2. RULE 23(a).

A. Numerosity.

Numerosity is satisfied if “the class is so numerous that joinder of all members is

impracticable.” F.R.C.P. 23(a)(1). There is no dispute that the proposed class satisfies this

requirement (see Dkt. No. 70-4 at 11).

B. Commonality.

Commonality is satisfied if “there are questions of law or fact common to the class.” 

F.R.C.P. 23(a)(2). The party seeking class certification must show that their claims depend on a

common contention “capable of classwide resolution — which means that determination of its

truth or falsity will resolve an issue that is central to the validity of each one of the claims in

one stroke.” Stockwell v. City & Cty. of San Francisco, 749 F.3d 1107, 1112 (9th Cir. 2014)

(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). “All questions of fact and

law need not be common to satisfy the rule. The existence of shared legal issues with divergent

factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal

remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). 

There is no dispute that the proposed class satisfies this requirement (see Dkt. No. 70-4 at 11).

C. Typicality.

Typicality is satisfied if “the claims or defenses of the representative parties are typical

of the claims or defenses of the class.” F.R.C.P. 23(a)(3). “The test of typicality is whether

other members have the same or similar injury, whether the action is based on conduct which is

not unique to the named plaintiff[], and whether other class members have been injured by the

same course of conduct.” Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th

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Cir. 2010) (quotations omitted). “Under the rule’s permissive standards, representative claims

are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need

not be substantially identical.” Hanlon, 150 F.3d at 1020. There is also no dispute that the

proposed class satisfies this requirement (see Dkt. No. 70-4 at 11).

D. Adequate Representation.

A proposed class representative is adequate if they “will fairly and adequately protect

the interests of the class.” F.R.C.P. 23(a)(4). Our court of appeals has explained that a

representative meets this standard if they (1) have no conflicts of interest with other class

members and (2) will prosecute the action vigorously on behalf of the class. Staton v. Boeing

Co., 327 F.3d 938, 957 (9th Cir. 2003). Here, Uber contends Dulberg is an inadequate class

representative because he has a conflict of interest with other class members. Uber cites the

declaration of its economics expert, Justin McCrary, for the proposition that most of the

putative class actually received higher compensation and therefore benefitted from Uber’s

upfront-pricing policy. Thus, Uber argues, even if Dulberg himself would have been slightly

better off under his theory of the driver agreement, the majority of the putative class would have

been worse off (see Dkt. Nos. 70-4 at 17–19, 70-13 ¶¶ 28–46).

Dulberg does not dispute Uber and McCrary’s analysis in his reply brief. Instead, he

argues that the conflict can be resolved by redefining the class as “[a]ll natural persons

nationwide who (1) drove for UberX or UberSelect; (2) opted out of arbitration; (3) transported

a passenger who was charged an upfront Fare before May 22, 2017, when Uber issued its

updated fee addendum; and (4) made less money overall on rides where they transported

passengers who were charged an upfront Fare because they were paid on a Fare calculated

based on actual time and distance values instead of the upfront Fare calculated based on

estimated time and distance values” (Dkt. No. 72-4 at 4).

Having anticipated Dulberg’s tactic, Uber argues in its opposition brief that the conflict

of interest cannot be remedied by simple redefinition of the class. Uber cites various decisions

for the proposition that “fail-safe” classes, which are defined by the merits of their legal claims,

present fairness problems and cannot be certified because they are inherently unascertainable

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and unmanageable prior to a finding of liability (see Dkt. No. 70-4 at 18–19). As Dulberg

points out, however, the proposed redefinition would not create a “fail-safe” class because no

finding of liability is required to determine its boundaries. Rather, as Uber’s own expert

demonstrated on the instant motion, Uber’s records can be used to precisely identify the

members of the proposed redefined class. And, while it would inhere in the class definition that

members would have received higher compensation under Dulberg’s theory of the driver

agreement, whether or not said theory has merit would remain an open question. This order

therefore concludes Dulberg’s proposed redefined class would avoid the conflict of interest

problem without creating an impermissible “fail-safe” class.

During oral argument, counsel for Uber focused on the different argument that Dulberg

still has a conflict of interest with drivers who would not fall into the proposed redefined class

but who remained subject to the driver agreement during the relevant time period. This

argument assumes but offers no authority for the premise that a class action for breach of

contract must include as class members every party to the contract at issue. Possibly, Uber’s

point that Dulberg’s theory would actually be worse for most drivers will enjoy more force on

the merits of his claim. For present purposes, however, Uber’s argument does not make

Dulberg an inadequate representative for the proposed redefined class.

Uber also contends Dulberg is an inadequate class representative because he is

vulnerable to unique defenses. See Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.

1992) (class certification should be denied if “there is a danger that absent class members will

suffer if their representative is preoccupied with defenses unique to it”). Dulberg admitted in

deposition that, by the end of September 2016, he knew his Fare was based on something other

than the upfront price paid by the passenger (see Dkt. No. 70-7 at 65:9–66:5). He nevertheless

went on to take 185 rides between October 1, 2016, and the commencement of this lawsuit

(Dkt. No. 70-13 ¶ 18). Uber argues that this subjects him to a ratification or estoppel defense

under California law (see Dkt. No. 70-4 at 19–21). Significantly, however, Uber asserts in the

same breath that it “would be able to develop evidence that other drivers in the putative class

likely had similar information . . . subjecting them to the same defenses that apply to [Dulberg]”

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 In the “Factual Background” section of its opposition brief, Uber devotes two paragraphs to

accusations that Dulberg used various improper tricks to make more money off of Uber — for example, by

taking the scenic route on rides — and was once suspended from Uber for a period of two weeks as a result of

such tricks (see Dkt. No. 70-4 at 9–10). The point of these accusations — other than to smear Dulberg’s

character — remains unclear, and they do not come up again in Uber’s arguments proper. This order therefore

does not consider them further.

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(id. at 20). In other words, per Uber’s own argument, the defenses it describes are not unique to

Dulberg. Uber’s real point seems to be that delving into such defenses would require

individualized inquiries, thereby raising a predominance problem under Rule 23(b). This order

therefore addresses this argument below within the context of the predominance inquiry.2

Uber does not otherwise challenge the adequacy of Dulberg or his counsel, Napoli

Shkolnik PLLC, as class representatives. Uber does not dispute that they would prosecute this

action vigorously on behalf of class members. Dulberg, for his part, has actively pursued his

grievances with Uber’s application of the driver agreement, both prior to and during this

litigation (see Dkt. No. 67 at 5–6). Napoli Shkolnik specializes in class action and commercial

litigation and has experience handling breach of contract claims (id. at 6, 15–16). This order

finds Dulberg and his counsel to be adequate representatives as required by Rule 23(a)(4).

3. RULE 23(b).

Dulberg contends he satisfies the third condition of Rule 23(b), which provides:

A class action may be maintained if Rule 23(a) is satisfied and if

. . . the court finds that the questions of law or fact common to

class members predominate over any questions affecting only

individual members, and that a class action is superior to other

available methods for fairly and efficiently adjudicating the

controversy. The matters pertinent to these findings include:

(A) the class members’ interests in individually controlling

the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the

controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the

litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

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A. Predominance.

Dulberg contends common issues predominate because this action primarily turns on the

interpretation of the driver agreement, as laid out in the prior order denying Uber’s motion to

dismiss (Dkt. No. 67 at 10–12). Interpretation of that agreement will, of course, apply on a

class-wide basis. Uber offers three responses, none persuasive. First, Uber contends

individualized damages inquiries will predominate because some drivers actually benefitted

from Uber’s application of the driver agreement (Dkt. No. 70-4 at 13–15). As stated, however,

Dulberg proposed in his reply brief to redefine the class to exclude such drivers. Again, Uber’s

argument may enjoy some force on the merits of this action. For present purposes, however, it

fails to show that individual issues predominate and defeat class certification. 

Second, Uber contends individual drivers may have had their damages offset by the

subjective value they placed on “price certainty” and “risk avoidance” resulting from Uber’s

upfront-pricing policy (see id. at 15–16). Uber’s own argument, however, relies on McCrary’s

citation to the “basic tenet of economics that in general people place a positive value on those

factors” (ibid.). Insofar as Uber’s argument turns on such general principles, it remains

susceptible to a common method of proof. Significantly, despite Uber’s insistence that “[t]his is

no mere hypothetical issue,” it identifies no member of the putative class who actually

subscribed to this “basic tenet of economics” in entering the driver agreement. Nor, as Dulberg

points out, does the driver agreement itself contain any terms incorporating the subjective value

of such factors. At this stage, Uber’s hand-wringing over the subjective motivations of putative

class members remains too hypothetical and attenuated from our facts to show that individual

issues will predominate over the contract dispute at the core of this case.

Third, as stated, Uber points out that it can assert affirmative defenses against putative

class members based on ratification or estoppel. This, Uber claims, will devolve into

individualized inquiries regarding “what a driver saw and knew and when, and whether the

driver continued to drive” (see Dkt. No. 70-4 at 8–9, 20–21). Significantly, however, the actual

defenses described by Uber again remain largely susceptible to common methods of proof. 

Uber posits, as an example, that “drivers may have learned about upfront pricing . . . from

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Uber’s own website,” “from communications or emails in which Uber responded to driver

inquiries,” or from message boards dedicated to Uber drivers (see id. at 9, 20). But insofar as

Uber’s defenses turn on the potential legal implications of public information available on its

website or message boards, those implications can be determined on a class-wide basis. It may

turn out, for example, that the information available on Uber’s website and message boards was

inadequate as a matter of law to trigger any ratification or estoppel defense. 

Possibly, some individualized questions will linger as to circumstances unique to

specific drivers, but at this stage that possibility pertaining to a relatively small corner of this

case does not predominate over centerpiece, class-wide issues like the interpretation and alleged

breach of the driver agreement. If individualized questions come into greater focus as this

litigation continues to the point that they become unmanageable or threaten to overwhelm classwide issues, the class can be decertified. At this point, however, this order concludes that classwide issues predominate over individualized questions as required by Rule 23(b)(3).

B. Superiority.

Dulberg contends a class action is a superior method of adjudicating the putative class

members’ claims because no member would have sufficient damages to separately prosecute

claims in individual actions. Nor does any related or similar litigation weigh against

adjudication of the putative class members’ claims in this action. Moreover, there is no dispute

that California law governs the driver agreement, making this a suitable forum (see Dkt. No. 67

at 1, 13–14). Uber does not dispute any of this in its opposition, nor does it otherwise argue

against the superiority of class-wide adjudication here. This order concludes that a class action

is also a superior method of adjudication in this case as required by Rule 23(b)(3).

CONCLUSION

To the foregoing extent, plaintiff’s motion for class certification is GRANTED. The

following class is CERTIFIED:

All persons nationwide who (1) drove for UberX or UberSelect;

(2) opted out of arbitration; (3) transported a passenger who was

charged an upfront Fare before May 22, 2017, when Uber issued

its updated fee addendum; and (4) made less money overall on

rides where they transported passengers who were charged an

upfront Fare because they were paid on a Fare calculated based on

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actual time and distance values instead of the upfront Fare

calculated based on estimated time and distance values.

This class definition shall apply for all purposes, including settlement. Plaintiff Martin

Dulberg is hereby APPOINTED as class representative. Plaintiff’s counsel from the law firm of

Napoli Shkolnik PLLC are hereby APPOINTED as class counsel.

By MARCH 1 AT NOON, the parties shall jointly submit a proposal for class notification,

with the plan to distribute notice by MARCH 22. In crafting their joint proposal, counsel shall

please keep in mind the undersigned judge’s guidelines for notice to class members in the

“Notice Regarding Factors to be Evaluated for Any Proposed Class Settlement” filed

concurrently with this order.

This order shall remain under seal until FEBRUARY 16 AT NOON, after which it will be

unsealed and filed on the public docket in its entirety unless one or more parties move to keep

specific portions of the order under seal.

IT IS SO ORDERED.

Dated: February 14, 2018. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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