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Paul B. Maslo (admitted pro hac)

Andrew J. Dressel (admitted pro hac)

NAPOLI SHKOLNIK PLLC 

360 Lexington Avenue, 11th Floor 

New York, New York 10017 

Telephone: (212) 397-1000 

Fax: (646) 843-7603

Email: pmaslo@napolilaw.com

 adressel@napolilaw.com

Counsel for Martin Dulberg

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MARTIN DULBERG, individually, and on 

behalf of all others similarly-situated,

Plaintiff,

v.

UBER TECHNOLOGIES, INC., and

RASIER, LLC,

Defendants.

Case No. 3:17-cv-00850-WHA

MOTION FOR CLASS CERTIFICATION

AND APPOINTMENT OF CLASS 

COUNSEL

Judge: The Honorable William H. Alsup

Date: February 8, 2018

Time: 8:00 a.m.

Courtroom: 8

Trial Date: October 29, 2018

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NOTICE OF MOTION AND MEMORANDUM OF LAW

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on February 8, 2018, at 8:00 a.m., or as soon thereafter as the

matter may be heard, in Courtroom 8 of the San Francisco Courthouse for the Northern District of

California, located at 450 Golden Gate Avenue, San Francisco, CA 94102, Martin Dulberg will move 

the Court for an order granting his motion for class certification and appointment of Napoli 

Shkolnik PLLC as class counsel pursuant to Federal Rule of Civil Procedure 23. Dulberg’s motion is 

based on the accompanying memorandum of law and related documents, as well as all the pleadings, 

records, and files in this action.

Dated: December 21, 2017

Respectfully submitted,

/s/ Paul B. Maslo

Paul B. Maslo (admitted pro hac)

Andrew J. Dressel (admitted pro hac)

NAPOLI SHKOLNIK PLLC 

360 Lexington Avenue, 11th Floor 

New York, New York 10017 

Telephone: (212) 397-1000 

Fax: (646) 843-7603

Email: pmaslo@napolilaw.com

 adressel@napolilaw.com

Counsel for Martin Dulberg

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................................... 1

ISSUES................................................................................................................................................................. 2

STATEMENT OF FACTS .............................................................................................................................. 2

I. Uber changed the way it paid drivers when it implemented upfront pricing............................... 2

II. This dispute hinges on the interpretation of a form agreement that Uber drafted..................... 4

III. The class is numerous and identifiable .............................................................................................. 5

IV. Dulberg has diligently and vigorously prosecuted this case............................................................ 5

V. Napoli Shkolnik has ample experience and resources..................................................................... 6

STANDARD....................................................................................................................................................... 6

ARGUMENT..................................................................................................................................................... 7

I. The Court should redefine the class................................................................................................... 7

II. The proposed class is sufficiently numerous.................................................................................... 8

III. The proposed class has sufficient commonality because its members have the same 

relation to a form agreement, the breach of which is the core issue in this case ........................ 8

IV. Dulberg’s claim is typical of the class because all members are bound to the same form 

agreement and allege the same wrongful conduct ........................................................................... 9

V. Dulberg and Napoli Shkolnik are adequate class representatives because they have no 

conflicts with the class and are vigorously prosecuting this case................................................. 10

VI. Common issues predominate because this case turns on the interpretation of a form 

agreement............................................................................................................................................. 10

VII. Damages are calculable from the ride data that Uber provided ................................................... 12

VIII. A class action is superior to other methods for adjudicating this case ...................................... 13

IX. The proposed class is ascertainable because its members can be objectively determined 

based on the records that Uber produced....................................................................................... 14

X. The Court should appoint Napoli Shkolnik as class counsel........................................................... 15

CONCLUSION ............................................................................................................................................... 16

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TABLE OF AUTHORITIES

Cases

Abdeljalil v. Gen. Elec. Capital Corp., 

306 F.R.D. 303 (S.D. Cal. 2015)..................................................................................................7, 8, 15

Armstrong v. Davis, 

275 F.3d 849 (9th Cir. 2001) .................................................................................................................. 7

Astlana v. Kashi Co., 

291 F.R.D. 493 (S.D. Cal. 2013)....................................................................................................12, 13

Chastain v. Union Sec. Life Ins. Co., 

No. 06-cv-5885-ABC-FFMX, 2008 WL 11333691 (C.D. Cal. May 6, 2008)......................9, 13, 14

Comcast Corp. v. Behrend, 

133 S. Ct. 1426 (2013)........................................................................................................................... 12

Cryer v. Franklin Templeton Res., Inc., 

No. 16-cv-4265-CW, 2017 WL 4023149 (N.D. Cal. July 26, 2017) ................................................. 7

Davidson v. Kimberly-Clark Corp., 

873 F.3d 1103 (9th Cir. 2017) ................................................................................................................ 7

Ellsworth v. U.S. Bank, N.A., 

No. 12-cv-02506-LB, 2014 WL 2734953 (N.D. Cal. June 13, 2014) ................9, 10, 11, 13, 14, 15

Estakhrian v. Obenstine, 

320 F.R.D. 63 (C.D. Cal. 2017)............................................................................................................ 12

Ewert v. eBay, Inc., 

No. 07-cv-02198-RMW, 2010 WL 4269259 (N.D. Cal. Oct. 25, 2010) ..................................11, 14

Hofstetter v. Chase Home Fin., LLC, 

No. 10-cv-01313-WHA, 2011 WL 1225900 (N.D. Cal. Mar. 31, 2011)...........6, 7, 8, 9, 10, 14, 15

In re Med. Capital Sec. Litig.,

No. 09-cv-1048-DOC, 2011 WL 5067208 (C.D. Cal. July 26, 2011)............................................. 11

Leyva v. Medline Indus. Inc., 

716 F.3d 510 (9th Cir. 2013) ................................................................................................................ 12

Rodman v. Safeway, Inc., 

No. 11-cv-03003-JST, 2014 WL 988992 (N.D. Cal. Mar. 10, 2014), 

aff’d, 694 F. App’x 612 (9th Cir. 2017)..........................................................7, 8, 9, 10, 11, 12, 14, 15

Rosales v. El Rancho Farms,

No. 09-cv-00707-AWI-JLT, 2014 WL 321159 (E.D. Cal. Jan. 29, 2014) .................................... 12

Sateriale v. RJ Reynolds Tobacco Co., 

No. 09-cv-08394-CAS(SSx), 2014 WL 7338877 (C.D. Cal. Dec. 19, 2014).................................. 12

Vedachalam v. Tata Consulting Setvices, Ltd., 

No. 06-cv-0963-CW, 2012 WL 1110004 (N.D. Cal. Apr.2, 2012) ......................8, 9, 10, 11, 14, 16 

Yokoyama v. Midland Nat’l Life Ins. Co., 

594 F.3d 1087 (9th Cir. 2010) .............................................................................................................. 12

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Zinser v. Accufix Research Inst., Inc.,

253 F.3d 1180 (9th Cir. 2001) .............................................................................................................. 14

Rules

Rule 23....................................................................................................................................................6, 7, 14

Rule 23(a)......................................................................................................................................................... 6

Rule 23(a)(2) .................................................................................................................................................... 8

Rule 23(a)(3) .................................................................................................................................................... 9

Rule 23(a)(4) .................................................................................................................................................. 10

Rule 23(b)......................................................................................................................................................... 6

Rule 23(b)(3)................................................................................................................................... 6, 7, 10, 13

Rule 23(g)(1).................................................................................................................................................. 15

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Martin Dulberg submits this memorandum of law in support of his motion for class certification 

and appointment of Napoli Shkolnik PLLC as class counsel pursuant to Federal Rule of Civil 

Procedure 23.

PRELIMINARY STATEMENT

This case involves the interpretation of the December 11, 2015 Technology Services Agreement 

(the “TSA”), a form contract of adhesion that Uber1drafted. All class members are bound to the 

TSA and the only substantive issue in this case is whether Uber breached the TSA when, after

implementing upfront pricing, it paid drivers based on a different fare than the one it collected from 

passengers. Because this case involves the alleged breach of a form agreement, it is tailor-made for 

class certification. Notably, courts in this district have held time and time again that claims arising 

from the interpretation of a form contract present the ideal case for class treatment and they 

routinely certify such cases. The result should be the same here. 

Indeed, Dulberg easily satisfies the requirements for certification:

 With 9,197 members, the proposed class is sufficiently numerous. 

 Because Dulberg and the other class members are bound to the TSA, a form contract, 

and the interpretation of the TSA is the main issue in this case, Dulberg also clears the 

commonality, typicality, and predominance hurdles. Moreover, damages are readily 

calculable from a spreadsheet that Uber produced. 

 Dulberg and Napoli Shkolnik are adequate class representatives because they have no 

conflicts of interest with the class and are vigorously prosecuting this case. 

 There is no doubt that utilizing the class action mechanism is superior to other methods 

for adjudicating class members’ claims because none of them has sufficient damages to 

bring his own action. 

 This case is manageable as a class action because the singular focus will be on whether 

Uber breached the TSA, a form agreement that binds all class members. 

 The proposed class is ascertainable because its members can be objectively identified 

from the records that Uber produced. 

In addition to certifying the class, the Court should appoint Napoli Shkolnik as class counsel. The 

firm has extensive resources, aggressively prosecuted this case, and ample experience running class 

actions. 

 

1

“Uber” includes Uber Technologies, Inc. and Rasier, LLC. 

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Finally, the Court should narrow the class definition, so that it includes only individuals, like 

Dulberg, who drove for UberX and Uber Select. 

ISSUES

Should the Court (1) certify this case because, as numerous courts in this district have held, 

claims arising from the interpretation of a form contract are ideal for treatment as a class action; and 

(2) appoint Napoli Shkolnik, a firm with ample experience and resources, as class counsel? Under 

well-established law, the answer to both questions is “yes.” 

STATEMENT OF FACTS

I. Uber changed the way it paid drivers when it implemented upfront pricing. 

Dulberg has been an UberX driver since May 2014 and an Uber Select driver since February 

2015. (First Amended Complaint (“FAC”) ¶ 13.) Like all class members, he is currently bound by the 

TSA. (Id., Ex. 1.) The TSA has a California choice-of-law clause and a forum-selection clause 

designating San Francisco. (Id. § 15.1.)

Class members did not negotiate the terms of the TSA, which Uber drafted in its entirety. (See, 

e.g., Uber’s Responses and Objections to Plaintiff’s First Set of Interrogatories (“Uber’s R&Os to 

Rogs”), attached as Ex. 1 to the Declaration of Paul B. Maslo, at 10 (“The [TSA] was prepared by 

Uber[.]”); Uber’s Responses and Objections to Plaintiff’s Amended First Set of Document Requests 

(“Uber’s R&Os to RFPs”), attached as Ex. 2 to the Maslo Declaration, at 27 (“The TSA was 

prepared by or at the direction of counsel and therefore it, along with documents and 

communications generated during the drafting process, are privileged.”).) Class members were merely 

allowed to opt out of arbitration, which they all did. (See, e.g., Uber’s R&Os to Rogs at 10 (“Drivers 

like Mr. Dulberg, and every member of the putative class, also expressly could (and did) reject certain 

core provisions of the TSA, namely the arbitration provisions[.]”).) If class members wanted to work, 

they had no choice but to agree to the TSA. (See, e.g., TSA, Preamble (“In order to use the Uber 

Services, you must agree to the terms and conditions that are set forth below.”) (emphasis added).)

Uber “is a technology services provider that does not provide transportation services.” (Id.) 

Instead, it “provides lead generation to independent providers of rideshare or peer-to-peer . . . 

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passenger transportation services using the Uber Services.” (Id.) Class members “enter[ed] into [the 

TSA] for the purpose of accessing and using the Uber Services.” (Id.)

The “Uber Services” include “Uber’s on-demand lead generation and related services . . . that 

enable transportation providers to seek, receive and fulfill on-demand requests for transportation 

services by Users seeking transportation services; such Uber Services include access to the Driver 

App and Uber’s software, websites, payment services . . ., and related support services systems[.]” (Id. 

§ 1.13.) 

In other words, Uber is class members’ service provider. In return, they pay Uber a Service Fee 

from the Fares they charges passengers. Specifically, class members are “entitled to charge a fare for 

each instance of completed Transportation Services provided to a User [i.e., passenger] that [is] 

obtained via the Uber Services (‘Fare’), where such Fare is calculated based upon a base fare amount 

plus distance . . . and/or time amounts . . . (‘Fare Calculation’).” (Id. § 4.1.)

Class members “appoint[ed] [Uber] as [their] limited payment collection agent solely for the 

purpose of accepting the Fare, applicable Tolls and, depending on the region and/or if requested by 

[them], applicable taxes and fees from the User on [their] behalf via the payment processing 

functionality facilitated by the Uber Services[.]” (Id.) Uber also charges a “Booking Fee for every 

trip,” which it collects on class members’ behalf. (FAC, Ex. 2 (Service Fee Addendum).) 

The TSA requires Uber “to remit, or cause to be remitted, to [class members] on at least a weekly 

basis: (a) the Fare less the applicable Service Fee; (b) the Tolls; and (c) depending on the region, 

certain taxes and ancillary fees.” (TSA § 4.1.) The Service Fee is paid “on a per Transportation 

Services transaction basis calculated as a percentage of the Fare determined by the Fare Calculation.” 

(Id. § 4.4.) As an example, the Service Fee is 20% on Dulberg’s UberX rides and 28% on his Uber 

Select rides. (Service Fee Addendum.) 

From the time Uber disseminated the TSA in December 2015 until it implemented upfront 

pricing, Uber performed one Fare Calculation based on actual inputs for time/distance at the end of 

each UberX and Uber Select ride: 

When a rider takes a trip with you, they are charged a Fare at the end of the ride. Each Fare is 

calculated based on how far and how long the trip took to complete. Fares are calculated by 

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adding a base fare (if applicable) + time and distance rates. Riders are also charged a booking 

fee (approx $1-2) . . . Drivers using the partner app are charged an Uber Fee [i.e., Service Fee] 

as a percentage of each trip fare.

(FAC ¶ 19. See also id. ¶ 3.) Passengers paid that Fare, Uber calculated its Service Fee based on that 

Fare, and class members received the remainder of that Fare. 

When Uber implemented upfront pricing, its practices changed. It began doing two separate Fare 

calculations, one upfront to charge passengers (with estimated inputs for time/distance) and another 

after the ride (with actual inputs for time/distance) to determine class members’ compensation:

After Uber implemented upfront pricing, the calculations of rider payments and drivers’ 

Fares under the [TSA] were generally the same as before Uber implemented upfront pricing, 

except that the rider’s payment (including time and distance variables) is estimated at the start 

of the trip rather than based on actual time and distance data determined at the end of the 

trip.

(Uber’s R&Os to Rogs at 8 (noting that Uber “[s]eparat[ed] rider payments from driver Fares” under 

upfront pricing) (second emphasis in original). See also id. at 9 (“Accordingly, after upfront pricing, 

rider payments are typically based on estimated time and distance, whereas driver payments are based 

on actual time and distance.”) (emphasis in original; bold removed).)

The Fare that Uber calculates based on actual values is generally smaller than the upfront Fare 

that passengers pay. (FAC ¶ 29.) Uber pays class members based on this lower amount and pockets 

the difference. (Id.)

II. This dispute hinges on the interpretation of a form agreement that Uber drafted. 

There is one core issue in this case: whether Uber’s practice of paying class members based on a 

separate Fare from the one it collected from passengers breached the TSA. (See, e.g., FAC ¶ 39 

(“There are questions of law and fact common to the Class that predominate over any questions 

affecting only individual Class members, including . . . [w]hether, under California law, which applies 

to all drivers pursuant to the [TSA]’s choice-of-law clause, Uber breached the [TSA], the terms of 

which apply to all drivers[.]”); Uber’s R&Os to RFPs at 4 (noting as an objection that “the discrete 

dispute” in this case is “over the contractual interpretation of the driver ‘fare’ as defined by the 

[TSA]”); id. at 27 (contending that other sections of the TSA “are not relevant to the discrete 

contractual dispute in this case over how the driver Fare as defined in the TSA is calculated[.]”).)

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III.The class is numerous and identifiable. 

The class is currently defined as “[a]ll natural persons nationwide who have worked or who 

continue to work as a driver for Uber during the time period it instituted the billing practice 

described in this complaint and who opted out of arbitration.” (FAC ¶ 36.) Under this definition the 

class would include drivers for UberX, Uber XL, Uber Select, Uber Pool, Uber Black, and Uber 

SUV. But Dulberg drove for only UberX and Uber Select. (Id. ¶ 13.) In addition, according to Uber, 

the TSA does not apply to Uber Black and Uber SUV. (See, e.g., Uber’s R&Os to Rogs at 3.)

Because Dulberg did not utilize the other services, he seeks to amend the class definition to 

include the following: “All natural persons nationwide who (1) worked as a driver for UberX or Uber 

Select; (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.”2

There are 9,197 drivers in the class. (Declaration of Andrew J. Dressel ¶ 5, Ex. B.) Uber provided 

an Excel spreadsheet that has ride-by-ride data over the relevant period for all drivers who opted out 

of arbitration, which makes identifying class members an easy process. (Id.)

IV. Dulberg has diligently and vigorously prosecuted this case.

Before deciding to file suit, Dulberg did research on the internet regarding Uber’s upfront 

pricing. (Dulberg Declaration ¶ 2.) He also discussed the issue with his passengers and uncovered a 

consistent pattern of Uber collecting a higher Fare from passengers than the Fare that he was paid 

on. (Id. ¶ 3.) After complaining to Uber about the issue and getting nowhere, Dulberg decided to take 

legal action. (Id.) He interviewed multiple firms and engaged Napoli Shkolnik. (Id.) Dulberg has 

played an important role throughout this litigation. (Id. ¶ 4.) For example, he provided factual 

background for, reviewed, and edited the complaint. (Id.) He has been active in discovery, working 

with Napoli Shkolnik to provide answers to interrogatories and collect and produce documents. (Id.)

 

2 Uber’s new fee addendum is attached as Exhibit 3 to the Maslo Declaration. In the addendum, the

Fare that class members are paid on is calculated with “actual distance and/or time amounts.” (May 

22 Addendum § 4.1 (emphasis added).) By comparison, the TSA does not specify whether the Fare 

calculation includes “actual” or “estimated” amounts, and thus, its plain language covers the upfront 

Fare. Moreover, the new fee addendum does not use Service Fee percentages. Instead, “Service Fee 

equals 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.” (Id. § 4.4.) 

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He will be deposed on January 4. (Id.) Dulberg has pledged to “continue to do everything that [he] 

can to prosecute this case on behalf of [him]self and the class that [he] represent[s].” (Id. ¶ 5.) 

Dulberg has no conflicts of interest with the other class members. (Id. ¶ 6. See also FAC ¶ 41 

(“Plaintiff is able to fairly and adequately protect the interests of the Class and has no interests 

adverse to the Class. At all relevant times, Plaintiff and Class members are and have been similarly 

situated[.]”). 

V. Napoli Shkolnik has ample experience and resources. 

Napoli Shkolnik is a nationally-recognized firm that specializes in class action, mass tort, and 

commercial litigation. (Maslo Declaration ¶¶ 2-3.) It has achieved tremendous financial success, 

recovering well over $2 billion on behalf of its clients. (Id. ¶ 4.) The attorneys on this case have good 

credentials and relevant experience. (Id. ¶¶ 5-11.) Napoli Shkolnik has vigorously litigated this case, is 

familiar with the law governing this case, and will continue to devote its extensive financial and 

human resources to this case. (Id. ¶¶ 12-14. See also FAC ¶ 44 (“The representative and his chosen 

attorneys are familiar with the subject matter of the lawsuit and have full knowledge of the allegations 

contained in this complaint so as to be able to assist in its prosecution. In addition, the 

representative’s attorneys are competent in the relevant areas of the law and have sufficient 

experience to vigorously represent the Class. Furthermore, the resources available to counsel ensure 

that the litigation will not be hampered by a lack of financial capacity. Plaintiff’s attorneys have 

sufficient financial resources and are willing to absorb the costs of the litigation.”).)

STANDARD

“The party seeking class certification bears the burden of showing that each of the four 

requirements of Rule 23(a) and at least one of the requirements of Rule 23(b) are met.” Hofstetter v. 

Chase Home Fin., LLC, No. 10-cv-01313-WHA, 2011 WL 1225900, at *6 (N.D. Cal. Mar. 31, 2011)

(Alsup, J.). “Rule 23 requires a court granting class certification to find (1) numerosity of the class; (2) 

commonality of legal or factual questions; (3) typicality of the named plaintiffs’ claims and defenses; 

and (4) adequacy of the named plaintiffs to protect the interests of the class.” Id. “Certification under 

Rule 23(b)(3) requires the additional findings ‘that the questions of law or fact common to class 

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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.’” Id. “In 

addition to the explicit requirements of Rule 23, an implied prerequisite to class certification is that 

the class must be sufficiently definite.” Id. at *12.

“In adjudicating a motion for class certification, the allegations in the complaint are accepted as 

true so long as those allegations are sufficiently specific to permit an informed assessment as to 

whether the requirements of Rule 23 have been satisfied.” Id. at *6. See also Cryer v. Franklin Templeton 

Res., Inc., No. 16-cv-4265-CW, 2017 WL 4023149, at *1 (N.D. Cal. July 26, 2017) (“In general, the 

court must take the substantive allegations of the complaint as true [on a motion for class 

certification].”). 

“California recognizes the objective theory of contracts, under which it is the objective intent, as 

evidenced by the words of the contract, rather than the subjective intent of one of the parties, that 

controls interpretation [and] the parties’ undisclosed intent or understanding is irrelevant to contract 

interpretation.” Rodman v. Safeway, Inc., No. 11-cv-03003-JST, 2014 WL 988992, at *7 (N.D. Cal. Mar. 

10, 2014), aff’d, 694 F. App’x 612 (9th Cir. 2017) (quotation marks and text alterations omitted). “It is 

for this reason that, when viewed in light of Rule 23, claims arising from interpretations of a form contract 

appear to present the classic case for treatment as a class action, and breach of contract cases are routinely certified as 

such.” Id. (emphasis added; quotation marks and text alteration omitted). 

ARGUMENT

I. The Court should redefine the class.

“Where appropriate, the district court may redefine the class[.]” Armstrong v. Davis, 275 F.3d 849, 

871 n.28 (9th Cir. 2001), abrogated on other grounds, Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th 

Cir. 2017). Because Dulberg only drove for UberX and Uber Select, he seeks to narrow the class 

definition to include the following: “All natural persons nationwide who (1) worked as a driver for 

UberX or Uber Select; (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.” The Court should grant his request. See, e.g., Abdeljalil v. Gen. Elec. Capital Corp., 306 F.R.D. 

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303, 306 (S.D. Cal. 2015) (“A review of the record reflects that the class definition presented in the 

TAC is clearly broader than the class definition plaintiff seeks to certify. Although defendant 

characterizes the two definitions as very different classes, this Court agrees with plaintiff that the new 

definition is simply a narrower version of the class definition presented in the TAC, which is 

allowable.”) (quotation marks and citation omitted); Hofstetter, 2011 WL 1225900, at *12 (Alsup, J.) 

(narrowing class definition on motion for class certification). 

II. The proposed class is sufficiently numerous. 

There are 9,197 drivers in the class, which satisfies the numerosity requirement. See, e.g., Rodman, 

2014 WL 988992, at *17 (“[C]ourts generally find that the numerosity factor is satisfied if the class 

comprises 40 or more members.”) (quotation marks omitted; text alteration in original). 

III. The proposed class has sufficient commonality because its members have the same 

relation to a form agreement, the breach of which is the core issue in this case. 

“For purposes of Rule 23(a)(2) even a single common question will do.” Id. at *4 (quotation 

marks and text alterations omitted). “Where questions common to class members present significant 

issues that can be resolved in a single adjudication there is clear justification for handling the dispute 

on a representative rather than on an individual basis.” Id. (quotation marks omitted). Courts 

routinely find that the commonality requirement is satisfied where the interpretation of a form 

agreement is at issue.

For example, Vedachalam v. Tata Consultancy Services, Ltd. involved “form contract[s] drafted by 

[d]efendants,” which were “identical in regards to almost every material term[.]” No. 06-cv-0963-CW, 

2012 WL 1110004, at *9 (N.D. Cal. Apr. 2, 2012). Because defendants drafted the agreements, the 

court found that, “[e]ven if [d]efendants could establish some ambiguity with extrinsic evidence, the 

ambiguous contract terms would be interpreted against them, as the drafters of the form contract[s].” 

Id. Moreover, the court opined that “when there is a form contract of adhesion at issue, . . . the 

agreement is interpreted whenever reasonable as treating alike all those similarly situated, without 

regard to their knowledge or understanding of the standard terms of the writing.” Id. (quotation 

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marks omitted). Accordingly, the court held that “[p]laintiffs have satisfied their burden to meet the 

commonality requirement” because “a class-wide proceeding will generate common answers 

regarding whether Defendants engaged in practices that violated the parties’ agreements[.]” Id. at *9-

10. See also Rodman, 2014 WL 988992, at *7 (“[C]laims arising from interpretations of a form contract 

appear to present the classic case for treatment as a class action, and breach of contract cases are 

routinely certified as such.”) (quotation marks omitted); Chastain v. Union Sec. Life Ins. Co., No. 06-cv5885-ABC-FFMX, 2008 WL 11333691, at *3-4 (C.D. Cal. May 6, 2008) (“Courts often certify class actions 

involving form contracts . . . . Plaintiff’s proposed class shares these same issues: interpretation of a 

standard contract and common practices in applying the contract terms.”) (emphasis added).

Here, as explained above, the entire case hinges on the interpretation of the TSA, an adhesive

form agreement that Uber drafted. For that reason, Dulberg easily satisfies the commonality 

requirement. 

IV. Dulberg’s claim is typical of the class because all members are bound to the same form 

agreement and allege the same wrongful conduct. 

“The typicality requirement of Rule 23(a)(3) is satisfied when the claims or defenses of the 

representative parties are typical of the claims or defenses of the class.” Hofstetter, 2011 WL 1225900, 

at *9 (Alsup, J.) (quotation marks omitted). “A plaintiff’s claims are typical if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” Id. (quotation 

marks omitted). Dulberg clears the typicality hurdle because his and other class members’ breach-ofcontract claims are identical. See, e.g., Ellsworth v. U.S. Bank, N.A., No. 12-cv-02506-LB, 2014 WL 

2734953, at *15 (N.D. Cal. June 13, 2014) (“The claims are typical. The allegations here are that 

Plaintiffs had identical form contracts, and the policies were applied uniformly[.]”); Rodman, 2014 WL 

988992, at *13 (typicality satisfied where plaintiff “is bringing these claims on behalf of Proposed 

Class Members who suffered the same alleged breach of contract injury, based on the same 

conduct”); Vedachalam, 2012 WL 1110004, at *10-11 (“Further, even if mutual mistake rendered the 

compensation term ambiguous, Defendants drafted the contract, so the ambiguous term would be 

construed in favor of Plaintiff Beri and the other class members. Thus, the Court finds that the 

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interests of the named Plaintiffs are reasonably co-extensive with the absent class members and that 

the typicality requirement has been met.”).

V. Dulberg and Napoli Shkolnik are adequate class representatives because they have no 

conflicts with the class and are vigorously prosecuting this case. 

“The adequacy requirement of Rule 23(a)(4) permits certification only if ‘the representative 

parties will fairly and adequately protect the interests of the class.’” Hofstetter, 2011 WL 1225900, at *9 

(Alsup, J.). “This factor has two requirements: (1) that the proposed representative plaintiffs and their 

counsel do not have any conflicts of interest with the proposed class; and (2) that the named 

plaintiffs and their counsel will prosecute the action vigorously on behalf of the class.” Id. Dulberg

and Napoli Shkolnik satisfy these criteria.

Dulberg “is bringing these claims on behalf of Proposed Class Members who suffered the same 

alleged breach of contract injury, based on the same conduct [Dulberg] shares with the Proposed 

Class Members[.]” Rodman, 2014 WL 988992, at *13. As such, “[t]here is no reason to believe 

[Dulberg’s] interests or Proposed Class Counsel’s interests are not aligned with the members of the 

Proposed Class, nor that Proposed Class Counsel is likely to be an inadequate representative.” Id. 

Dulberg has also diligently worked with Napoli Shkolnik to vigorously prosecute this case. (See 

Dulberg Declaration ¶¶ 2-6; FAC ¶ 41.) See, e.g., Ellsworth, 2014 WL 2734953, at *18 (adequacy 

requirement satisfied where plaintiffs “worked actively with counsel to prepare and ‘vigorously’ 

prosecute the case, have no conflicts, and will represent the class members’ interests as if they were 

their own”). 

Thus, Dulberg and Napoli Shkolnik are adequate class representatives. 

VI. Common issues predominate because this case turns on the interpretation of a form 

agreement. 

“The predominance inquiry of Rule 23(b)(3) asks whether proposed classes are sufficiently 

cohesive to warrant adjudication by representation. The focus is on the relationship between the 

common and individual issues.” Vedachalam, 2012 WL 1110004, at *11 (quotation marks omitted). 

“When common questions present a significant aspect of the case and they can be resolved for all 

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members of the class in a single adjudication, there is clear justification for handling the dispute on a 

representative rather than on an individual basis.” Id. (quotation marks omitted). 

The predominance requirement is generally satisfied in cases involving the interpretation of a 

form agreement. See, e.g., Ellsworth, 2014 WL 2734953, at *20 (“[C]ourts routinely certify class actions 

regarding breaches of form contracts. This authority supports the conclusion that common questions 

predominate when, as here, they involve form contracts and standardized policies and practices[.]”) (emphasis 

added; citation omitted); Rodman, 2014 WL 988992, at *9 (“The Court does not yet reach the 

question of how the alleged contract should be interpreted, but it can determine after rigorous 

analysis that there is no obstacle to commonality or predominance. The scope and proper 

interpretation of the objective words of the parties’ agreement is a common question that applies 

commonly to all members of the class, is an issue whose resolution will drive resolution of the 

litigation, and will predominate over any individualized issues.”); Vedachalam, 2012 WL 1110004, at 

*14-15 (“[G]iven that the DTA was a form adhesion contract, the understanding of the individual 

class members of its terms is not relevant. Instead, the Court will effectuate the reasonable 

expectations that an employee would have of the meaning of the contract . . . . Accordingly, the 

Court finds that Plaintiffs have met their burden to demonstrate that issues for the breach of 

contract claim common to the national class predominate over issues affecting only individual 

members.”); In re Med. Capital Sec. Litig., No. 09-cv-1048-DOC, 2011 WL 5067208, at *3 (C.D. Cal. 

July 26, 2011) (“Defendants acknowledge that Plaintiffs’ breach of contract claim involves alleged 

violations of standardized contracts (the NISAs), which existed in substantially identical form across 

all MedCap SPCs. Courts routinely certify class actions involving breaches of form contracts.”) (emphasis added)

(collecting cases); Ewert v. eBay, Inc., No. 07-cv-02198-RMW, 2010 WL 4269259, at *7 (N.D. Cal. Oct. 

25, 2010) (“[W]hen there is a standardized agreement like the form contract at issue in this case, the 

agreement is interpreted wherever reasonable as treating alike all those similarly situated, without 

regard to their knowledge or understanding of the standard terms of the writing . . . . Accordingly, in 

construing the form contract between eBay and class members, the court need not delve into the 

actual knowledge of individual class members. The court therefore concludes that plaintiffs’ breach 

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of contract claim does not raise individual issues likely to be the object of most of the court’s and the 

parties’ efforts.”) (quotation marks and citation omitted). 

The result should be no different here. 

VII. Damages are calculable from the ride data that Uber provided. 

“The potential existence of individualized damage assessments . . . does not detract from the 

action’s suitability for class certification.” Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1089

(9th Cir. 2010). At this stage, plaintiffs must only “be able to show that their damages stemmed from 

the defendant’s actions that created the legal liability.” Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 

(9th Cir. 2013) (citing Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1435 (2013)). For example, in Levya, 

which involved purported wage-and-hour violations, the district court denied class certification on 

the basis that “the damages inquiry will be highly individualized.” Id. at 513 (quotation marks 

omitted). The Ninth Circuit reversed because damages “could feasibly and efficiently be calculated 

[from defendant’s records] once the common liability questions are adjudicated.” Id. at 514.

Accordingly, what is required is not a firm damages calculation, but a simple showing of the 

evidence that could be used to calculate damages connected to the applicable theory of liability. Id. 

Detailed economic models are not necessary. See, e.g., Estakhrian v. Obenstine, 320 F.R.D. 63, 89 (C.D. 

Cal. 2017) (certifying breach of contract subclass even though “plaintiffs did not provide a damages 

model for the subclass . . . as the specificity and extent of the harm suffered by these class members 

is clear”); Sateriale v. RJ Reynolds Tobacco Co., No. 09-cv-08394-CAS(SSx), 2014 WL 7338877, at *11 

(C.D. Cal. Dec. 19, 2014) (certifying breach of contract class based on deposition testimony regarding 

the value of redemption points, not the “use of complex regression models”); Rodman, 2014 WL 

988992, at *9 (“If Plaintiff can prevail on the merits on its theory of the contract, all Class Members 

will have damages in the amount of the undisclosed fees, and calculating damages is a simple matter 

of refunding those charges.”); Rosales v. El Rancho Farms, No. 09-cv-00707-AWI-JLT, 2014 WL 

321159, at *6-7 (E.D. Cal. Jan. 29, 2014) (declining to decertify class where damages, including for 

breach of contract, could be shown by “a simple calculation”); Astlana v. Kashi Co., 291 F.R.D. 493, 

506 (S.D. Cal. 2013) (certifying class including breach of contract claims based on plaintiffs’ 

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representation “that they can calculate the total restitutionary damages based upon sales, profits and 

prices data from records generally maintained by [defendant]”).

Dulberg meets the applicable standard. Uber has provided a detailed Excel spreadsheet that 

contains ride-by-ride data for every member of the class over the relevant period. (Dressel 

Declaration ¶ 8, Ex. C.) That data allows Dulberg to calculate how much class members would have 

been paid had Uber compensated them based on the upfront Fare, rather than the backend Fare. (Id.)

At that point, calculating damages merely involves subtracting what the class members were paid 

from what they should have been paid. (Id.)

VIII. A class action is superior to other methods for adjudicating this case.

“Rule 23(b)(3) requires the Court to determine whether ‘a class action is superior to other 

available methods for fairly and efficiently adjudicating the controversy.’” Chastain, 2008 WL 

11333691, at *12. “The rule identifies factors relevant to this inquiry, including ‘(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.’” Id. (quoting Fed. R. Civ. 

Proc. 23(b)(3)). Each of these factors weighs in favor of certification. 

First, “it is not likely that the potential damages claims of individual plaintiffs are sizeable enough 

to make individual actions feasible[.]” Id. The class contains thousands of individuals who gave only a 

small number of upfront rides and have minimal damages. (See Dressel Declaration ¶ 5, Ex. B.) “This 

factor favors treating this case as a class action.” Chastain, 2008 WL 11333691, at *12 (“Plaintiff’s 

interest payments were only $2,000, which he indicates is typical for the class. Although not de 

minimus, this amount is small enough that it probably would not provide individual class members 

an incentive to pursue individual claims against the corporate defendants here.”). See also Ellsworth, 

2014 WL 2734953, at *29 (“Aggregation in a class action can be efficient when many individuals have 

small damages because absent a class suit, it is unlikely that any of the claimants will be accorded 

relief. The point of the superiority analysis is a focus on efficiency and economy so that appropriate 

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cases may be adjudicated most profitably on a representative basis.”) (citation omitted); Vedachalam, 

2012 WL 1110004, at *18 (“While the court in Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th 

Cir. 2001), found that the superiority factor weighed against class certification when damages 

suffered by each class member were large, in that case, the court found that the damages for each class 

member exceeded $50,000. Id. at 1190-91. Here, Defendants acknowledge that one of the named 

Plaintiffs seeks under $25,000 in damages.”) (emphasis in original).

Second, other than a few subsequently-filed copycat lawsuits, there is no related litigation, which 

favors class treatment. See Chastain, 2008 WL 11333691, at *12. 

Third, the TSA contains a California choice-of-law clause and a forum-selection clause that 

requires the parties to litigate in San Francisco. As such, “it is reasonable to litigate the action in a 

single forum,” which “favors class-action treatment.” Id. 

Finally, “[m]aintaining the claims in a single forum is likely to facilitate management by avoiding 

duplicative proceedings in other fora” and “the risk of inconsistent results.” Id. at *13. 

Thus, “[r]esolving the Proposed Class Members’ claims for breach of a form contract in a class 

action is a superior method of resolving the dispute than conducting litigation on an individual 

basis.” Rodman, 2014 WL 988992, at *12. See also Ellsworth, 2014 WL 2734953, at *30 (“The main 

factors here militating in favor of the superiority of a class action are the small individual claims, the 

common theories of liability, and the form contracts and standard policies. Concentrating litigation 

thus makes sense for efficiency and economy.”) (citation omitted); Ewert, 2010 WL 4269259, at *12 

(“In this case [involving a form agreement], . . . a class action would be manageable since the focus of 

the litigation would be on common issues. Consequently, the court finds class treatment to be 

superior to individual adjudications.”).

IX. The proposed class is ascertainable because its members can be objectively determined 

based on the records that Uber produced. 

“In addition to the explicit requirements of Rule 23, an implied prerequisite to class certification 

is that the class must be sufficiently definite.” Hofstetter, 2011 WL 1225900, at *12 (Alsup, J.). Here, 

membership in the proposed class is based on objective criteria (i.e., whether a driver worked for 

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UberX or Uber Select, opted out of arbitration, and transported a passenger who was charged an 

upfront fare) and class members are readily identifiable from the spreadsheet that Uber produced. 

(See Dressel Declaration ¶ 5, Ex. B.) That satisfies the ascertainability requirement. See, e.g., Abdeljalil, 

306 F.R.D. at 308 (“This Court agrees with plaintiff that the class here is ascertainable because class 

members likely can be determined by objective criteria based on defendant’s business records[.]”);

Ellsworth, 2014 WL 2734953, at *13 (“That information is ascertainable from the records, even if it 

will entail some effort on the part of counsel for both parties to identify the class members.”) 

(quotation marks omitted); Rodman, 2014 WL 988992, at *15 (“Plaintiff has submitted evidence 

indicating that Defendant maintains sufficient records to determine which Safeway.com customers 

registered . . . and placed orders during these time periods . . . The class definition appears to be 

sufficiently definite and the identity of the individual members ascertainable.”); Hofstetter, 2011 WL 

1225900, at *12 (Alsup, J.) (class ascertainable where “[a]ll the parameters for membership . . . are 

objective criteria, and defendants’ business records should be sufficient to determine the class 

membership status of any given individual”). 

X. The Court should appoint Napoli Shkolnik as class counsel.

In appointing class counsel, the court “must consider[] (i) the work counsel has done in 

identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class 

actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s 

knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the 

class.” Fed. R. Civ. P. 23(g)(1). Napoli Shkolnik has well-qualified attorneys; it has a record of 

achieving success for its clients; it has worked extensively on this case, both in the investigatory and 

litigation phases; it has significant experience handling class actions and breach of contract claims; it 

has command over the law governing this case; and it has extensive financial and human resources, 

which it has devoted to this case. (See Maslo Declaration ¶¶ 2-14; FAC ¶ 44 (“The representative and 

his chosen attorneys are familiar with the subject matter of the lawsuit and have full knowledge of the 

allegations contained in this complaint so as to be able to assist in its prosecution. In addition, the 

representative’s attorneys are competent in the relevant areas of the law and have sufficient 

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experience to vigorously represent the Class. Furthermore, the resources available to counsel ensure 

that the litigation will not be hampered by a lack of financial capacity. Plaintiff’s attorneys have 

sufficient financial resources and are willing to absorb the costs of the litigation.”). Accordingly, the 

Court should appoint Napoli Shkolnik as class counsel. See, e.g., Vedachalam, 2012 WL 1110004, at *19 

(appointing class counsel where “Plaintiffs represent that their counsel . . . have invested significant 

time and resources to investigating and developing the legal claims in this case thus far, that they are 

seasoned and experienced in handling class actions of this nature, that they are knowledgeable of the 

relevant law, and that they will continue to commit ample resources to representing the class”). 

CONCLUSION

The Court should grant Dulberg’s motion for class certification and appoint Napoli Shkolnik as 

class counsel. 

Dated: December 21, 2017

Respectfully submitted,

/s/ Paul B. Maslo

Paul B. Maslo (admitted pro hac)

Andrew J. Dressel (admitted pro hac)

NAPOLI SHKOLNIK PLLC 

360 Lexington Avenue, 11th Floor 

New York, New York 10017 

Telephone: (212) 397-1000 

Fax: (646) 843-7603

Email: pmaslo@napolilaw.com

 adressel@napolilaw.com

Counsel for Martin Dulberg

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CERTIFICATE OF SERVICE

The undersigned attorney certifies that on December 21, 2017, he electronically filed a copy of 

the attached via the CM/ECF filing system, which sent notification of such filing to all Filing Users.

/s/ Paul B. Maslo

Case 3:17-cv-00850-WHA Document 67 Filed 12/21/17 Page 22 of 22