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 No. 3:17-cv-00939-WHA

SUR-REPLY IN OPPOSITION TO MOTION TO INTERVENE AND MODIFY ORDER 

QUINN EMANUEL URQUHART & SULLIVAN, LLP 

 Charles K. Verhoeven (Bar No. 170151) 

 charlesverhoeven@quinnemanuel.com 

 David A. Perlson (Bar No. 209502) 

 davidperlson@quinnemanuel.com 

 Melissa J. Baily (Bar No. 237649) 

 melissabaily@quinnemanuel.com 

 John Neukom (Bar No. 275887) 

 johnneukom@quinnemanuel.com 

 Jordan Jaffe (Bar No. 254886) 

 jordanjaffe@quinnemanuel.com 

50 California Street, 22nd Floor 

San Francisco, California 94111-4788 

Telephone: (415) 875-6600 

Facsimile: (415) 875-6700 

Attorneys for WAYMO LLC 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

WAYMO LLC, 

Plaintiff, 

v. 

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING 

LLC, 

Defendants. 

CASE NO. 3:17-cv-00939-WHA 

PLAINTIFF WAYMO LLC’S SUR-REPLY 

IN OPPOSITION TO ANTHONY 

LEVANDOWSKI’S MOTION FOR 

INTERVENTION UNDER RULE 24 AND 

MODIFICATION OF ORDER 

GRANTING IN PART AND DENYING IN 

PART PROVISIONAL RELIEF 

Hearing 

Date: June 7, 2017 

Time: 10:00 a.m. 

Courtroom: Courtroom 8, 19th Floor 

PUBLIC REDACTED VERSION OF 

DOCUMENT SOUGHT TO BE SEALED 

Case 3:17-cv-00939-WHA Document 542 Filed 06/02/17 Page 1 of 7
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 -1- No. 3:17-cv-00939-WHA

SUR-REPLY IN OPPOSITION TO MOTION TO INTERVENE AND MODIFY ORDER

Pursuant to the parties’ stipulation (Dkt. 530), and the Court’s authorization (Dkt. 534), 

Plaintiff Waymo LLC (“Waymo”) submits this Sur-Reply in Opposition to Anthony 

Levandowski’s Motion for Intervention and Modification of Order Granting in Part and Denying 

in Part Provisional Relief (the “Motion”) (Dkt. 466). 

INTRODUCTION 

The Court’s Preliminary Injunction Order (the “Order”) requires Defendants to “exercise 

the full extent of their corporate, employment, contractual, and other authority to . . . cause 

[Anthony Levandowski] to return the downloaded materials and all copies, excerpts, and 

summaries thereof to Waymo (or the Court) . . . .” (Dkt. 433 at 23 ¶ 2(b).) The crux of Mr. 

Levandowski’s Motion is that this Order transforms any adverse employment action by Uber—a 

private employer—into “state action,” because the Order “has compelled Uber to change its 

previous course of conduct.” (Dkt. 519 (Reply) at 7; see also id. at 1.) 

In his Reply Brief, Mr. Levandowski touts a “new development” that he claims has “added 

additional force to [his] position.” (Id. at 1.) As argued in the Reply, “[o]n May 26, 2017, Uber 

sent Mr. Levandowski a new letter stating that, because he has thus far failed to ‘cooperat[e]’ with 

Uber’s efforts to comply with the Court’s May 11, 2017 Order . . . , Mr. Levandowski will be 

terminated on June 15, 2017, unless he ‘cures’ the failure to cooperate by immediately complying 

with the demands contained in Uber’s original May 15, 2017 letter.” (Id., quoting Dkt. 519-2 (Ex. 

B to Reply) (emphasis in original).) 

Rather than adding “additional force” to Mr. Levandowski’s argument, however, this 

newly cited evidence conclusively refutes it. First, Uber’s May 26, 2017 Letter (the “May 26th 

Letter”) cites multiple, independent reasons for Mr. Levandowski’s termination, which eliminates 

any possibility that the Court’s Order constituted unconstitutionally coercive “state action.” 

Second, the May 26th Letter states that Mr. Levandowski’s employment with Uber “is hereby 

terminated for Cause.” (Dkt. 519-2 (Ex. B to Reply) at 1.) Thus, Mr. Levandowski was 

terminated on May 26th, not June 15th. Presumably, Mr. Levandowski’s access to Uber’s 

Case 3:17-cv-00939-WHA Document 542 Filed 06/02/17 Page 2 of 7
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 -2- No. 3:17-cv-00939-WHA

SUR-REPLY IN OPPOSITION TO MOTION TO INTERVENE AND MODIFY ORDER

facilities have been terminated as has his access to his Uber email and Uber servers. (See Ex. 1.)1 

Although Uber provides a 20 day “cure” period, as set forth below, it is clear that Levandowski 

cannot “cure” the adverse employment action that has already been taken against him. Thus, the 

May 26th Letter confirms that Mr. Levandowski’s Motion is moot. Regardless of any 

modification to the Order now, Mr. Levandowski has already been terminated. The unwarranted 

modification of the preliminary injunction order sought by Levandowski would now have no 

effect on Levandowski’s employment. For these reasons, and those stated in Waymo’s Opposition 

(Dkt. 512), the Motion should be denied. 

ARGUMENT

A. The Court’s Order Is Just One Of Many Reasons For Mr. Levandowski’s 

Termination. 

Contrary to Mr. Levandowski’s representation that the Court’s Order “has compelled Uber 

to change its previous course of conduct” (Dkt. 519 (Reply) at 7), the May 26th Letter actually 

demonstrates that Mr. Levandowski’s employment has been terminated for at least two separate 

reasons that are both wholly independent of the Order: 

 “Second, you did not comply with the prior written directive to cooperate 

with Uber’s investigation sent to you on April 20, 2017, by Angela Padilla 

(the contents of which are privileged). Your failure impeded Uber’s 

internal investigation and defense of the lawsuit referenced above and 

constitutes a ground for termination for Cause.” 

 “Further, in your Employment Agreement, you represented and warranted 

that ‘you have returned or destroyed all property and confidential 

information belonging to any prior employer.’ Your failure to comply 

with the Letter gives Uber grounds to allege a breach of the representation 

and warranty in your employment agreement, and constitutes an additional 

ground for termination with Cause.” 

(Dkt. 519-2 (Ex. B to Reply) at 1.) During a June 1st meet-and-confer, Uber confirmed that Mr. 

Levandowski is “fired,” that he “no longer works at Uber,” and that they did not expect him to 

“cure” the breaches giving rise to his termination. (Ex. 1.) When Waymo pointed out that this 

was seemingly inconsistent with Mr. Levandowski’s position that the May 26th Letter supports 

 

1

 References to “Ex. __” are to the accompanying Declaration of Patrick Schmidt. Pin cites 

correspond to the last four digits of the Bates number of the cited page. 

Case 3:17-cv-00939-WHA Document 542 Filed 06/02/17 Page 3 of 7
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SUR-REPLY IN OPPOSITION TO MOTION TO INTERVENE AND MODIFY ORDER

his request to modify the Order, Uber responded that it does not “necessarily agree” with those 

arguments. (Id.) 

Although Mr. Levandowski’s employment with Uber was “at will,” and terminable 

without “cause” (Ex. 2 at -7087), each of Uber’s two independently cited reasons for termination 

with cause are well-founded. 

 (Ex. 3 at -7111 – -7112.) 

 (Id. at -7112 (emphasis added).) As the May 26th Letter indicates, Uber conducted 

just such an “internal investigation” and requested that Mr. Levandowski cooperate on April 20th 

(i.e., 3 full weeks prior to the Order).2

 (Dkt. 519-2 (Ex. B to Reply) at 1.) The May 26th Letter 

further states that Mr. Levandowski’s failure to cooperate “impeded” this internal investigation 

and Uber’s defense of the lawsuit. (Id.) As such, Mr. Levandowski’s termination for cause is 

supported by conduct that predates the issuance of the Order. 

Additionally, 

 (Ex. 3 at -7111 – -7112.) 

 (Ex. 2 at -7084.) Uber admits in its May 26th Letter that it now has “grounds to 

allege” that Mr. Levandowski is in “breach of the representation and warranty in [his] employment 

 

2

 Apparently, Uber is claiming that its letter seeking Mr. Levandowski’s cooperation is 

“privileged.” (Dkt. 519-2 (Ex. B to Reply) at 1.) Waymo reserves the right to challenge this claim 

of privilege, including on the grounds that no common legal interest exists given Mr. 

Levandowski’s argument that Uber is unable to adequately protect his interests in regards to this 

matter. 

Case 3:17-cv-00939-WHA Document 542 Filed 06/02/17 Page 4 of 7
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 -4- No. 3:17-cv-00939-WHA

SUR-REPLY IN OPPOSITION TO MOTION TO INTERVENE AND MODIFY ORDER

agreement,” which “constitutes an additional ground for termination with Cause.”3 (Dkt. 519-2 

(Ex. B to Reply) at 1.) Thus, by Uber’s own admission, Mr. Levandowski’s independent breach 

of his employment agreement further supports the adverse employment action. 

Because Uber can and, in fact, did terminate Mr. Levandowski for these independent 

reasons, Mr. Levandowski’s entire argument that the Court’s Order unconstitutionally coerced 

Uber to violate his Fifth Amendment rights must fail. As demonstrated in Waymo’s Opposition, 

adverse employment action taken by a private employer—even if motivated in part by a desire to 

cooperate with the government— does not somehow transform the actions of the private employer 

into “state action” with constitutional limitations: 

[A] company is not prohibited from cooperating, and typically has supremely 

reasonable, independent interests for conducting an internal investigation and for 

cooperating with a governmental investigation, even when employees suspected 

of crime end up jettisoned. A rule that deems all such companies to be 

government actors would be incompatible with corporate governance and 

modern regulation. 

Gilman v. Marsh & McLennan Cos., Inc., 826 F.3d 69, 77 (2d Cir. 2016) (emphasis added). The 

only case that Mr. Levandowski cites for imposing constitutional restrictions on the actions of 

purely private employers involves the situation where the government’s influence was the “but 

for” cause of the deprivation in question. United States v. Stein, 541 F.3d 130, 155 (2d Cir. 2008) 

(“[T]hese defendants would have received fees from KPMG but for the government's 

interference.” (Emphasis added)). That is plainly not the case here, where Uber’s termination 

letter expressly lists grounds for termination with Cause that are entirely independent of the 

 

3

 Uber couches its grounds for alleging a breach of the Employment Agreement on Mr. 

Levandowski’s failure to comply with an earlier, May 16th Letter in which Uber wrote that if Mr. 

Levandowski denied taking downloaded materials from Google, he “must attest to that fact fully 

and completely in a written statement and provide that statement to the Uber legal department.” 

(Dkt. 466-2 (Ex. A to Mot.) at 2.) Mr. Levandowski may attempt to argue that this directive came 

as a result of the Court’s Order, and Mr. Levandowski’s decision to remain silent in response to 

Uber’s directive under the Order has now led to his termination. But, this argument fails. For this 

ground of termination, it is not Mr. Levandowski’s silence that has resulted in Uber terminating 

his employment—it is the inference that he is in breach of his employment agreement resulting 

from his silence that has caused his termination. Considering that the Court is permitted to draw 

such adverse inferences against Mr. Levandowski directly, he cannot seriously contend that Uber’s 

drawing of such inferences—even if as a result of the Court’s Order—results in a Fifth 

Amendment violation. 

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SUR-REPLY IN OPPOSITION TO MOTION TO INTERVENE AND MODIFY ORDER

Court’s Order. There has been no Fifth Amendment violation, and Mr. Levandowski’s Motion 

should be denied. 

B. Mr. Levandowski’s Requested Relief Is Now Moot. 

Additionally, the Court should not even consider modifying its Order because doing so at 

this time will have no effect on Mr. Levandowski’s employment status. See California ex rel. 

Lockyer v. U.S. Forest Service, Case No. C 04-02588-CRB, 2006 WL 2038491, at *1 (July 20, 

2006) (“A case is moot where ‘the issues presented are no longer “live” or the parties lack a 

legally cognizable interest in the outcome.’” (quotation omitted)). The Court lacks jurisdiction to 

issue what would amount to a mere advisory opinion. 

Here, Uber has alleged cause for termination based on Mr. Levandowski’s failure to 

cooperate with an April 20th internal Uber investigation, as well as his breach of a representation 

and warranty in his employment agreement. These breaches relate to past conduct whose legal 

implications cannot be reversed within the 20-day cure period. Boat Owners Ass’n of U.S. v. Sea 

Ventures of CA, Inc., Case No. CV 99-8703RJK, 2000 WL 33179449, at *6 (C.D. Cal. Aug. 7, 

2000) (“Plaintiff need not have provided the fifteen-day time to cure because it was impossible for 

Defendant to cure its breach.”); In re Premier Golf, LP, 564 B.R. 660, 686 (Bankr. S.D. Cal. 2016) 

(holding that it was “logically and temporally impossible” for party to cure default of agreement). 

It is therefore impossible for Mr. Levandowski to “cure,” meaning that for all intents and 

purposes, his termination for cause on the independent bases cited by Uber is all but final 

regardless of whether the Court modifies its Order. (See Ex. 1.) Under these circumstances, Mr. 

Levandowski’s Motion is moot because the Court cannot redress his purported injury. See Get 

Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 894 (9th Cir. 2007) (refusing to reach merits 

of question as to whether an “off-site sign ban” violated the First Amendment because “even a 

decision enjoining the off-site ban would not redress the injury Get Outdoors II suffered due to the 

denial of its permits.”); Herson v. City of Richmond, 631 Fed Appx. 472, 473 (9th Cir. 2016) 

(unpublished) (finding that constitutional claims were not redressable where there was a 

“independent, constitutionally valid reason” for the challenged conduct). 

Case 3:17-cv-00939-WHA Document 542 Filed 06/02/17 Page 6 of 7
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CONCLUSION 

For these reasons, and those stated in Waymo’s Opposition (Dkt. 512), the Motion should 

be denied. 

DATED: June 2, 2017 QUINN EMANUEL URQUHART & SULLIVAN, 

LLP 

By /s/Charles K. Verhoeven 

 Charles K. Verhoeven 

Attorneys for WAYMO LLC 

Case 3:17-cv-00939-WHA Document 542 Filed 06/02/17 Page 7 of 7