UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

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 

RANDALL W. EDWARDS (S.B. #179053)

redwards@omm.com 

MATTHEW D. POWERS (S.B. #212682) 

mpowers@omm.com 

DAMALI A. TAYLOR (S.B. #262489) 

dtaylor@omm.com 

ADAM M. KAPLAN (S.B. #298077) 

akaplan@omm.com 

O’MELVENY & MYERS LLP 

Two Embarcadero Center, 28th Floor 

San Francisco, California 94111-3823 

Telephone: (415) 984-8700 

Facsimile: (415) 984-8701 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC. and RASIER, LLC 

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

DEFENDANTS UBER TECHNOLOGIES, 

INC. AND RASIER, LLC’S OPPOSITION 

TO PLAINTIFF’S MOTION FOR CLASS 

CERTIFICATION 

Hearing Date: February 8, 2018 

Time: 8:00 a.m. 

Judge: Hon. William H. Alsup 

Courtroom: 8 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 1 of 26
TABLE OF CONTENTS 

Page

i UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

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 

I. INTRODUCTION ............................................................................................................... 1

II. FACTUAL BACKGROUND .............................................................................................. 3

A. Uber Provides Lead Generation Technology Services ............................................ 4

B. The Relevant Terms of the TSA .............................................................................. 4

C. Uber’s Implementation of Its Upfront Pricing Model for Riders ............................ 5

D. Drivers’ Knowledge and Understanding About Upfront Pricing Varied ................. 8

E. Plaintiff Improperly Extended Trips and Accepted Overpayments from 

Uber .......................................................................................................................... 9

F. The Scope of Plaintiff’s Class Definition .............................................................. 10

III. RIGOROUS ANALYSIS IS NEEDED TO CERTIFY A CLASS UNDER 

RULE 23 ............................................................................................................................ 10

A. Plaintiff Must Provide Evidence to Support Each Element of Certification ......... 11

B. Rule 23(b)(3) Predominance Requires Common Answers .................................... 12

C. Rule 23(a)(4) Adequacy of Representation Requires No Intra-Class 

Conflicts and No Class-Representative Specific Defenses .................................... 12

IV. INDIVIDUALIZED ISSUES DEFEAT PREDOMINANCE AND ADEQUACY .......... 13

A. The Essential Element of Fact of Damage Requires Individualized

Evidence and Creates a Serious Conflict of Interest .............................................. 13

1. The Element of Fact of Damage Requires Individualized Evidence ......... 13

2. Plaintiff Ignores Serious Intra-Class Conflicts .......................................... 17

B. Uber Has Plaintiff-Specific and Individualized Defenses That Further 

Preclude Certification on Predominance and Adequacy Grounds ......................... 19

V. CONCLUSION .................................................................................................................. 21

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 2 of 26
TABLE OF AUTHORITIES 

Page

ii UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

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 

CASES

Aghdasi v. Mercury Ins. Grp., Inc., 

2016 WL 5899301 (C.D. Cal. Jan. 12, 2016) .......................................................................... 19 

Allied Orthopedic Appliances, Inc. v. Tyco Healthcare Grp., 247 F.R.D. 156 (C.D. Cal. 2007) ....................................................................................... 18, 19

Amchem Prods., Inc. v. Windsor, 

521 U.S. 591 (1997) .......................................................................................................... passim 

Backus v. ConAgra Foods, Inc., 

2016 WL 7406505 (N.D. Cal. Dec. 22, 2016) ................................................................... 12, 20 

Califano v. Yamasaki, 442 U.S. 682 (1979) ................................................................................................................. 10 

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

2008 WL 11333691 (C.D. Cal. May 6, 2008) ......................................................................... 16 

Comcast Corp. v. Behrend, 

569 U.S. 27 (2013) ................................................................................................................... 12 

Curtis v. Extra Space Storage, Inc., 

2013 WL 6073448 (N.D. Cal. Nov. 18, 2013) ......................................................................... 19 

Deitz v. Comcast Corp., 

2007 WL 2015440 (N.D. Cal. July 11, 2007) .......................................................................... 12 

Ellis v. Costco Wholesale Corp., 

657 F.3d 970 (9th Cir. 2011) .............................................................................................. 11, 12 

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

2014 WL 2734953, (N.D. Cal. June 13, 2014) ....................................................................... 17 

Ewert v. eBay, Inc., 

2010 WL 4269259 (N.D. Cal. Oct. 25, 2010) .......................................................................... 17 

Fields v. Mobile Messengers Am., Inc., 

2013 WL 6073426 (N.D. Cal. Nov. 18, 2013) ......................................................................... 11 

Gonzales v. Comcast Corp., 

2012 WL 10621 (E.D. Cal. Jan. 3, 2012) ................................................................................. 14 

Gutierrez v. Wells Fargo & Co., 2010 WL 1233810 (N.D. Cal. Mar. 26, 2010) ......................................................................... 14 

Hanlon v. Chrysler Corp., 

150 F.3d 1011 (9th Cir. 1998) .................................................................................................. 12 

Herskowitz v. Apple Inc., 301 F.R.D. 460 (N.D. Cal. 2014) ............................................................................................. 12 

Hofstetter v. Chase Home Fin., 2011 WL 1225900 (N.D. Cal. Mar. 21, 2011) ......................................................................... 11 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 3 of 26
TABLE OF AUTHORITIES 

(continued) 

Page

iii UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

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 

In re Med. Capital Sec. Litig., 

2011 WL 5067208 (C.D. Cal. July 26, 2011) .......................................................................... 17 

In re Optical Disk Drive Antitrust Litig., 

303 F.R.D. 311 (N.D. Cal. 2014) .............................................................................................. 12

Kamar v. Radio Shack, 375 F. App’x 734 (9th Cir. 2010) ............................................................................................ 18 

Lassen Mun. Util. Dist. v. Kinross Gold U.S.A. Inc., 

2013 WL 924623 (E.D. Cal. Mar. 8, 2013) ............................................................................. 20 

Levy v. World Wrestling Entm’t, Inc., 

2009 WL 455258 (D. Conn. Feb. 23, 2009) ............................................................................ 21 

Lucas v. Breg, Inc., 212 F. Supp. 3d 950 (S.D. Cal. 2016) ...................................................................................... 13

Mazza v. Am. Honda Motor Co., 

666 F.3d 581 (9th Cir. 2012) .................................................................................................... 11 

Monaco v. Bear Stearns Cos., 2012 WL 10006987 (C.D. Cal. Dec. 10, 2012) ....................................................................... 19 

Moore v. Southtrust Corp., 2005 WL 4663636 (E.D. Va. June 10, 2005) .......................................................................... 21 

Oasis W. Realty, LLC v. Goldman, 

250 P.3d 1115 (Cal. 2011) ....................................................................................................... 13 

Parino v. BidRack, Inc., 838 F. Supp. 2d 900 (N.D. Cal. 2011) ..................................................................................... 13 

Randleman v. Fid. Nat’l Title Ins. Co., 

646 F.3d 347 (6th Cir. 2011) .................................................................................................... 18 

Robinson v. Onstar, LLC, 

2016 WL 4493733 (S.D. Cal. Aug. 25, 2016) ......................................................................... 20 

Rodman v. Safeway, Inc., 2014 WL 988992 (N.D. Cal. Mar. 20, 2014) ........................................................................... 16 

Rodriguez v. W. Publ’g Corp., 

563 F.3d 948 (9th Cir. 2009) .................................................................................................... 12 

Roling v. E*Trade Sec. LLC, 860 F. Supp. 2d 1035 (N.D. Cal. 2012) ................................................................................... 20 

Torres v. Mercer Canyons Inc., 

835 F.3d 1125 (9th Cir. 2016) .................................................................................................. 18 

Ubaldi v. SLM Corp., 

2014 WL 1266783 (N.D. Cal. Mar. 24, 2014) ......................................................................... 18 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 4 of 26
TABLE OF AUTHORITIES 

(continued) 

Page

iv UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

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 

Vedachalam v. Tata Consulting Servs., 

2012 WL 1110004 (N.D. Cal. Apr. 2, 2014) ........................................................................... 17 

Velasquez v. HSBC Fin. Corp., 

2009 WL 112919 (N.D. Cal. Jan. 16, 2009) ............................................................................ 18 

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ........................................................................................................... 11, 12 

STATUTES

28 U.S.C. § 2072 ...................................................................................................................... 10, 19 

Cal. Civ. Code § 1589 .................................................................................................................... 20 

Cal. Evid. Code § 623 .................................................................................................................... 19 

RULES

Fed. R. Civ. P. 23(a)(4) ............................................................................................................ 11, 12 

Fed. R. Civ. P. 23(b)(3) .................................................................................................................. 11 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 5 of 26
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 

 1 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

I. INTRODUCTION 

In his effort to paint the picture of a case “tailor made” for class treatment, Plaintiff 

ignores a fatal flaw in seeking collective adjudication: thousands of drivers—a clear majority of 

his proposed class—would be worse off under the contract interpretation Plaintiff seeks to 

impose. Plaintiff contends that Uber breached the December 11, 2015 Technology Services 

Agreement (“TSA”) with drivers when it began using an “upfront pricing” model for riders. 

Under upfront pricing, the rider’s charge for a trip is determined based on estimates before the 

trip begins using assumptions and data regarding traffic and other conditions. But while rider 

payments were based on estimates and predictions, drivers were still paid according to the actual 

time and distance of each trip. Uber took on the risk that its estimated upfront price may turn out 

to be low—and in such circumstances, it was typically Uber (not the rider or the driver) that lost 

revenue as a result. Uber has produced comprehensive trip data for the drivers in the putative 

class—

. 

As both Plaintiff and this Court have recognized, Plaintiff cannot “get it both ways”; the 

“Uber driver would have to take less” if it turned out in a given case that the driver would be 

worse off under Plaintiff’s interpretation of TSA. Edwards Decl., Ex. D (Hr’g Tr. at 3-4). But 

Plaintiff’s motion ignores the consequence of this basic premise. , 

Plaintiff instead asserts that common issues predominate based on his core (unsupported) 

allegation that all drivers were systematically underpaid as a result of upfront pricing. Mot. at 4. 

That key allegation is demonstrably untrue: Most drivers in the putative class actually were paid 

more than they would have been paid under Plaintiff’s preferred interpretation of the TSA. And 

whether a particular driver would have benefited from Plaintiff’s theory is an individualized issue 

dependent on his or her unique driving history, as are Uber’s potential affirmative defenses 

related to ratification and estoppel. Thus, Plaintiff’s motion to certify rests entirely on a flawed 

assertion that the “only substantive issue” in the case will be the interpretation of the TSA. To be 

sure, interpreting the TSA is an important issue. But certification under Rule 23(b)(3) is not 

warranted where, as here, the different circumstances of each driver create other critical 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 6 of 26
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 

 2 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

individualized issues and give rise to significant intra-class conflicts. 

Plaintiff offers no evidence that he could establish on a classwide basis the basic fact of 

damage—an essential element of his breach of contract claim under California law. Rather, he 

simply assumes, without discussion, that all class members “suffered the same alleged breach of 

contract injury.” But the “rigorous analysis” courts require to certify a class under Rule 23 

requires more than an unsupported assumption. The detailed trip data Uber produced confirms 

that—even assuming Plaintiff’s flawed interpretation of the TSA constituted a breach— 

. Upfront pricing was 

designed to make the cost of a trip clear and predictable for riders, based on factors including the 

estimated time and distance at the start of a trip, without placing any of the risk associated with 

those estimations on drivers, by continuing to remit their Fare for completing the trip based on the 

actual work they do—i.e., the actual distance traveled and time of the trip. Sometimes Uber’s 

estimations were high, but they were just as often (if not more often) low relative to the actual 

time and distance. And the risk—and corresponding cost—of those under-estimations was borne 

exclusively by Uber, to the drivers’ benefit. 

. Thus, the allegedly “common” question of the 

proper meaning of the TSA yields different outcomes for the proposed class members. 

This variance between Plaintiff’s view and the interests of most proposed class members 

also renders Plaintiff an inadequate class representative. 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 7 of 26
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 

 3 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

 But even though the data 

was readily available to him, Plaintiff does not even acknowledge the intra-class conflicts that 

will obviously exist from different drivers having different net outcomes. Instead, he merely 

recites in his brief and again in his declaration the boilerplate assertion that he has “no conflicts of 

interest with other class members.” 

Plaintiff’s proposed class claim also is subject to certain defenses—e.g., ratification and 

estoppel—that apply to different putative class members in different ways. A contract claim may 

fail when a plaintiff continues to perform (or accept performance) in the face of an alleged 

breach. Yet Plaintiff did precisely that here—

. Some other class members 

also may be subject to ratification and estoppel defenses because of their continued performance 

even upon learning of Uber’s interpretation of the TSA, whereas others that did not know (or 

understand) the different payment methods—or that stopped driving after learning how their Fare 

was determined—may not face the same obstacles. These differences among class members, and 

the particular facts subjecting Plaintiff to affirmative defenses not necessarily shared by all, 

further defeat predominance and adequacy. 

Plaintiff’s certification motion ignores individualized issues and intra-class conflicts that 

are obvious after even a cursory sampling of the trip data that Uber produced. The Court should 

therefore deny Plaintiff’s motion for class certification. 

II. FACTUAL BACKGROUND 

The crux of this case is the impact of Uber’s decision to continue to interpret the TSA 

related to driver payments consistently with prior practice (based on the actual time and distance 

of the trips) even when Uber introduced its upfront pricing model for riders on certain Uber 

products in 2016. With upfront pricing, riders typically were quoted a price for a trip before they 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 8 of 26
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 

 4 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

selected the trip, which enabled better informed choices that fit their individual needs. Upfront 

pricing was designed to make Uber’s pricing clearer and more predictable for riders, not to 

undermine driver payments or earnings. 

A. Uber Provides Lead Generation Technology Services 

Uber is a technology company that developed a software application that connects 

individual riders seeking transportation with independent transportation providers (the drivers) 

looking for paying passengers. Trew Decl. ¶ 2. Uber provides this technology through two 

smartphone applications—the “Uber Rider App” and “Uber Driver App” (the “Uber Apps”). Id. 

The Uber Apps enable authorized drivers like Plaintiff to “seek, receive, and fulfill” 

transportation requests—sometimes called “Trips”—from riders. Id.; Edwards Decl., Ex. A at 1. 

A rider may request a Trip using the Uber Rider App for one of several Uber products, including 

uberX and UberSELECT, each of which has different features and prices. Trew Decl. ¶ 3. For 

example, uberX offers riders affordable and convenient peer-to-peer private transportation, while 

UberSELECT is a premium version of uberX and thus is often a more costly option for riders. Id. 

Through the Uber Apps, riders are charged a price for a Trip, drivers are remitted a “Fare” for 

completing that Trip, and Uber retains a “Service Fee” for the driver’s use of the Uber Driver 

App. Id. The rider’s relationship with Uber is governed by rider-specific Terms of Service. Id. ¶ 

4. The driver Fare and Uber Service Fee, in contrast, are governed by a different contract—in 

this case, the December 11, 2015 Technology Services Agreement (“TSA”). Id.; see also

Edwards Decl., Ex. A. 

B. The Relevant Terms of the TSA 

The TSA governs the relationship between Plaintiff and other drivers and the relevant 

Uber subsidiary. The TSA sets forth, among other things, the steps a driver must take to opt out 

of arbitration (as Plaintiff and the other putative class members purport to have done) and the 

driver’s payment terms. Edwards Decl., Ex. A §§ 4, 15.3. Under Section 4.1 of the TSA, for 

each “completed” Trip a driver receives a “Fare” calculated “based upon a base fare amount plus 

distance (as determined by [Uber] using location-based services ...) and/or time amounts, as 

detailed at www.uber.com/cities for the applicable territory (‘Fare Calculation’).” Id. The 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 9 of 26
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 

 5 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

driver’s Fare “is the only payment [the driver] will receive” for a Trip. Id. Uber remits to the 

driver his or her Fare for completing the Trip, less any tolls, taxes, and other ancillary fees (paid 

by the rider), and the applicable Uber Service Fee, which under Section 4.4 of the TSA is 

“calculated as a percentage of the Fare determined by the Fare Calculation.” Id. The Service Fee 

may vary depending on factors including the product used (e.g., uberX, UberSELECT), the 

particular territory in which the Trip was completed, and the date of the Trip. Trew Decl. ¶ 4; see 

also FAC, Ex. 2 (TSA Service Fee Addendum, Raleigh-Durham); Mot. at 3. The TSA during the 

relevant class period stated that Uber expressly “reserve[d] the right to change the Service Fee at 

any time in [its] discretion,” subject to notice to drivers. Edwards Decl., Ex. A § 4.4. And 

“[c]ontinued use of the Uber Services after any such change in the Service Fee calculation shall 

constitute [a driver’s] consent to such change.” Id. 

C. Uber’s Implementation of Its Upfront Pricing Model for Riders 

Beginning in 2016 for uberX and UberSELECT, Uber introduced in different U.S. cities 

and at different times its “upfront pricing” model, which was designed to make Uber’s pricing 

clear and predictable for riders. Trew Decl. ¶ 6. Before upfront pricing, a rider typically was 

charged for a Trip according to a set base price plus a variable amount based on the actual 

distance traveled and time of the Trip. Id. ¶ 5. Riders also were responsible for any applicable 

fees, taxes and surcharges, and Uber’s booking fee. Id.; FAC, Ex. 2. Information about the base 

price, booking fee, and per-mile and per-minute rates for a particular region were available to 

riders on Uber’s website at www.uber.com/cities and within the Uber App for riders. Trew Decl. 

¶ 5; Edwards Decl., Ex. B (Pl.’s R&O to Uber’s First Interrog. No. 16) (“Before upfront pricing, 

actual time and distance were used.”); Mot. at 3 (“From the time Uber disseminated the TSA in 

December 2015 until it implemented upfront pricing, Uber performed one calculation based on 

actual inputs for time/distance at the end of each UberX and UberSelect ride ....”).1 

After the upfront pricing model was implemented, the rider’s payment (including the time 

 

1

 On page 3 of his Motion, Plaintiff purports to block-quote an excerpt from Uber’s website as 

alleged in the FAC describing how rider charges were assessed before upfront pricing. Mot. at 3 

(citing FAC ¶ 19). However, in his supposed quote, Plaintiff misleadingly capitalizes the “F” in 

“fare,” apparently seeking to equate it to the driver “Fare” under the TSA. No such capitalization 

appears on the website. 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 10 of 26
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 

 6 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

and distance variables) typically were estimated at the start of the Trip rather than based on the 

actual time and distance determined at the end of the Trip. Trew Decl. ¶ 6. Uber introduced 

upfront pricing to create more certainty for riders to enable better informed choices that fit their 

needs—not to undermine driver payments or earnings. Id. The TSA was unchanged from before 

the introduction of upfront pricing through the end of the proposed class period on May 22, 2017. 

Id.; Maslo Decl., Ex. 3 (May 22, 2017 TSA Addendum). Thus, after the introduction of upfront 

pricing to the riders, the driver’s Fare under the TSA was calculated the same as it had been 

before Uber rolled out upfront pricing to riders. Trew Decl. ¶ 6. 

Plaintiff contends that the putative class members were significantly underpaid as a result 

of upfront pricing. E.g., Mot. at 4, 10; FAC ¶ 3. Plaintiff’s views of exactly how the contractual 

payment provisions of TSA should be interpreted have shifted. In his FAC, discovery responses, 

and Motion, Plaintiff’s view was that the TSA requires drivers to be paid “[w]hatever the 

passenger pays minus the service fee and booking fee ....” Edwards Decl., Ex. C (Pl.’s R&O to 

Uber’s First RFPs No. 10); id., Ex. B (Pl.’s R&O to Uber’s First Interrog. No. 15) (same); FAC ¶ 

47 (“The money passengers pay for a ride, minus Uber’s service fee, belongs to Plaintiff and 

other drivers.”); Mot. at 4 (“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.”). 

In his Motion, Plaintiff repeats the assertion that Uber generally “over-estimated” the time 

and distance of a Trip for purposes of assessing a higher upfront price to a rider. Yet Plaintiff 

offers no evidence to support that assertion, other than a single example of a trip (Mot. at 4) 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 11 of 26
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 

 7 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

where the driver was “underpaid” according to Plaintiff. 

 In these 

circumstances, and unlike under Plaintiff’s theory, Uber (not the driver) bears the risk of the 

under-estimation, to the driver’s benefit—as both Plaintiff and this Court have recognized: 

THE COURT: All right. So, yeah, I think [Plaintiff’s] theory would be that if it 

turned out in a given case to be worse off [due to Uber’s under-estimation], the cab 

driver would have to take—the Uber driver would have to take less; right? 

MR. DRESSEL: I mean, we would have to look at it, Your Honor, but that sounds 

sensible to me. 

THE COURT: Listen—all right. You’re not going to get it both ways. 

MR. DRESSEL: Understood, Your Honor. 

See Edwards Decl., Ex. D at 3-4; see also McCrary Rpt. ¶¶ 26-27. 

 

2

 Exhibit L to the Declaration of Randall W. Edwards is a report by Uber’s expert, Professor 

Justin McCrary. It is cited throughout this opposition as “McCrary Rpt. ¶ __.” 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 12 of 26
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 

 8 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

Thus, for each driver, the aggregate economic impact of Uber’s interpretation of the TSA 

on the driver’s total rides may fluctuate—for example, a driver, in retrospect, could have been 

overpaid relative to what Plaintiff contends the driver should have been paid after five rides, been 

hypothetically underpaid after ten rides, and then again overpaid after twelve rides, and so on. 

See McCrary Rpt. ¶ 45 (“It is also possible that some drivers might be better off for one period of 

time under Mr. Dulberg’s interpretation of the TSA and might be worse off for another period of 

time.”). The only way to determine each driver’s actual aggregate net economic position relative 

to Plaintiff’s preferred contract interpretation (even were the interpretation accepted) would be to 

evaluate each Trip on a driver-by-driver basis. McCrary Rpt. ¶ 40 (“This evidence suggests that 

assessing whether any specific driver would be harmed based on an interpretation of the TSA 

would require individualized analysis of the data on a ride by ride basis.”). 

 

D. Drivers’ Knowledge and Understanding About Upfront Pricing Varied 

The evidence also varies regarding what drivers knew and understood about Uber’s 

upfront pricing and how it impacted their Fare under the TSA, as did drivers’ conduct in response 

to learning of such information. 

); Dulberg Decl. ¶ 2; Edwards Decl., Ex. B (Pl. Resp. to First Set Interrog. No. 

19). 

; and Plaintiff only 

vaguely asserts in his declaration he “complain[ed] to Uber about this and g[ot] no satisfaction,” 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 13 of 26
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 

 9 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

 See Dulberg Decl. ¶ 3; 

 

Other drivers may have learned about upfront pricing at other times and in other ways—

for example, from Uber’s own website, which clearly stated, “Providing upfront fares to riders 

does not impact the driver fare, which remains calculated using the normal base/minimum fare 

plus time and/or distance scheme.” Edwards Decl., Ex. E (UBER_LIT0013014, dated April 18, 

2017). They also may have learned of it from communications or emails in which Uber 

responded to driver inquiries by explaining that their Fare “for this trip has been calculated 

accurately based on time taken and distance traveled.” Id., Ex. J (UBER_LIT0013042); 

E. Plaintiff Improperly Extended Trips and Accepted Overpayments from Uber 

On several occasions, Plaintiff “overcharged Uber” by extending Trips without basis or 

taking longer routes than necessary. 

 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 14 of 26
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 

 10 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

 

 

F. The Scope of Plaintiff’s Class Definition 

In his complaint, Plaintiff defined his putative class as “All natural persons nationwide 

who have worked or who continue to work as a driver for Uber during the time period it instituted 

[its upfront pricing model] and who opted out of arbitration.” FAC ¶ 36. In his Motion, however, 

Plaintiff seeks to narrow his putative class to “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 price before they accepted Uber’s updated fee addendum, which it 

issued on May 22, 2017.” Mot. at 7. Thus, Plaintiff’s re-defined class is limited to individuals 

who have driven with Uber using the uberX or UberSELECT products and who successfully 

opted out of arbitration and completed at least one Trip for which a rider paid an upfront price. 

The relevant class period is from December 11, 2015 (the date of the TSA) up to May 22, 2017 

(the date of the TSA Addendum, which eliminated any possible claimed confusion over how the 

driver’s Fare under the TSA is determined). Cf. Maslo Decl., Ex. 3. 

III. RIGOROUS ANALYSIS IS NEEDED TO CERTIFY A CLASS UNDER RULE 23 

Class actions are “an exception to the usual rule that litigation is conducted by and on 

behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979). 

As a procedural device, a class action cannot be used to deprive Uber of its substantive rights to 

assert individualized defenses where a claim presents a factual and legal basis for a claimantCase 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 15 of 26
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 

 11 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

specific defense. See 28 U.S.C. § 2072; Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 

(1997) (Rule 23 “shall not abridge, enlarge or modify any substantive right”). In his Motion, 

Plaintiff misconstrues several aspects of the burden he must meet to warrant class certification 

under Rule 23(b)(3), which is the only form of certification he seeks. 

A. Plaintiff Must Provide Evidence to Support Each Element of Certification 

In his Motion, Plaintiff attempts to minimize his burden under Rule 23(b)(3), arguing that 

the “allegations in [his] complaint [must be] accepted as true so long as those allegations are 

sufficiently specific ....” Mot. at 7. That is not the law. Wal-Mart Stores, Inc. v. Dukes, 564 

U.S. 338, 350 (2011) (“Rule 23 does not set forth a mere pleading standard.”). To the contrary, 

the Court must “probe behind the pleadings” and conduct a “rigorous analysis” of the evidence of 

both sides to determine whether Plaintiff “affirmatively demonstrate[d]” that each element of 

Rule 23 is satisfied. Id. at 350-51; Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 

2012); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983-84 (9th Cir. 2011); Fields v. Mobile 

Messengers Am., Inc., 2013 WL 6073426, at *4 (N.D. Cal. Nov. 18, 2013) (Alsup, J.) (“Plaintiffs’ 

argument ... does not satisfy their evidentiary burden under Rule 23(b) because it merely 

speculates, without any actual evidence, that mass fraud may have occurred.”). 

The cases Plaintiff cites to the contrary have no application here. The Hofstetter decision, 

for example, pre-dates Dukes and cites to a statement from an earlier case (Blackie v. Barrack) 

that likewise does not survive Dukes. Hofstetter v. Chase Home Fin., LLC, 2011 WL 1225900, at 

*6 (N.D. Cal. Mar. 21, 2011) (Alsup, J.) (cited in Mot. at 6-7). And in her decision in Cryer v. 

Franklin Templeton Resources, Inc., Judge Wilken expressly stated that “[t]he court must conduct 

a ‘rigorous analysis,’ which may require it to probe behind the pleadings before coming to rest on 

the certification question” and “consider the persuasiveness of the evidence presented.” Cryer, 

2017 WL 4023149, at *1 (N.D. Cal. July 26, 2017) (cited in Mot. at 7). 

Uber does not contest the numerosity, commonality, or typicality requirements under Rule 

23(a)(1)-(3) at this time. But where, as here, Plaintiff fails to establish with “evidentiary proof” 

that the other requirements of Rule 23 are met—in particular, predominance and adequacy—class 

certification must be denied. Fed. R. Civ. P. 23(a)(4), (b)(3); Comcast Corp. v. Behrend, 569 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 16 of 26
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 

 12 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

U.S. 27, 33 (2013). 

B. Rule 23(b)(3) Predominance Requires Common Answers 

Although “[a]ny competently crafted class complaint literally raises common ‘questions,’” 

Dukes, 564 U.S. at 349, “[w]hat matters to class certification ... is not the raising of common 

‘questions’—even in droves—but, rather the capacity of common answers apt to drive the 

resolution of the litigation.’” Id. at 350. Thus, even though Plaintiff’s contract interpretation may 

be a common issue under Rule 23(a)(2), Plaintiff must also satisfy the “far more demanding” 

predominance requirement under Rule 23(b)(3) by establishing that common issues are “both 

numerically and qualitatively substantial in relation to the issues peculiar to individual class 

members.” Amchem, 521 U.S. at 623-24; Deitz v. Comcast Corp., 2007 WL 2015440, at *6 

(N.D. Cal. July 11, 2007) (Alsup, J.) (the predominance inquiry “is far more demanding than the 

Rule 23(a) commonality analysis” and “tests whether [the] proposed class ... [is] sufficiently 

cohesive to warrant adjudication by representation”); In re Optical Disk Drive Antitrust Litig., 

303 F.R.D. 311, 318 (N.D. Cal. 2014). This inquiry “prevents the class from degenerating into a 

series of individual trials.” Herskowitz v. Apple Inc., 301 F.R.D. 460, 470 (N.D. Cal. 2014) (the 

“predominance inquiry is a pragmatic one ... it is not bean counting”). 

C. Rule 23(a)(4) Adequacy of Representation Requires No Intra-Class Conflicts 

and No Class-Representative Specific Defenses 

Plaintiff also must affirmatively establish that he is an adequate class representative. Fed. 

R. Civ. P. 23(a)(4). As this Court has held, a class representative is inadequate if he has 

“conflicts of interest with other class members” or “if there is a danger that absent class members 

will suffer if [he] is preoccupied with defenses unique to him.” See Backus v. ConAgra Foods, 

Inc., 2016 WL 7406505, at *5-6 (N.D. Cal. Dec. 22, 2016); Rodriguez v. W. Publ’g Corp., 563 

F.3d 948, 959 (9th Cir. 2009) (“An absence of material conflicts of interest between the named 

plaintiffs ... with other class members is central to adequacy[.]”); Hanlon v. Chrysler Corp., 150 

F.3d 1011, 1020 (9th Cir. 1998) (named plaintiffs must not “have any conflicts of interest with 

other class members”); Ellis, 657 F.3d at 985 (similar). Merely incanting that Plaintiff “has no 

conflicts of interest” (e.g., Mot. at 1, 6) is not sufficient—

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 17 of 26
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 

 13 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

; see also 

Dulberg Decl. ¶ 6. 

IV. INDIVIDUALIZED ISSUES DEFEAT PREDOMINANCE AND ADEQUACY 

A. The Essential Element of Fact of Damage Requires Individualized Evidence 

and Creates a Serious Conflict of Interest 

To state a claim for breach of contract, Plaintiff must establish not only a contract breach, 

but also resulting damage. E.g., Parino v. BidRack, Inc., 838 F. Supp. 2d 900, 908-09 (N.D. Cal. 

2011) (Alsup, J.) (citing Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 821 (Cal. 2011)). In 

his Motion, Plaintiff focuses almost exclusively on “breach,” asserting Rule 23’s predominance 

and adequacy requirements are “easily” satisfied because the “only substantive issue” and 

“singular focus” in the case will be “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.” Mot. at 1; see also id. at 9 (“[T]he entire case hinges on the interpretation of the 

TSA.”). But while breach is one important issue, that issue is insufficient for certification in this

case given the individualized nature of other fundamental issues and given the conflicts that 

pervade Plaintiff’s class claims. In particular, the substantial variance among the majority of 

putative class members who benefited from Uber’s interpretation of the TSA relative to the 

minority who may have preferred Plaintiff’s interpretation means that the contract interpretation 

question will not “drive the resolution of the litigation.” Certifying a class here also would pit 

Plaintiff’s interests against the interests of many of the drivers he purports to represent. 

1. The Element of Fact of Damage Requires Individualized Evidence 

Plaintiff cannot establish the basic element of fact of damage—distinct from the 

calculated amount of damages—on a class-wide basis with common evidence. See Lucas v. 

Breg, Inc., 212 F. Supp. 3d 950, 970 (S.D. Cal. 2016) (“While determining the amount of 

damages” may not “defeat the predominance inquiry, a proposed class action requiring the court 

to determine individualized fact of damages does not meet the predominance standards of Rule 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 18 of 26
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 

 14 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

23(b)(3).”); Gonzales v. Comcast Corp., 2012 WL 10621, at *19 (E.D. Cal. Jan. 3, 2012) (no 

predominance where “[t]he evidence indicates a myriad of individual inquiries are required to 

ascertain the fact of damages for each Class member”). Courts “must give full consideration” to 

whether Plaintiff’s damages evidence “is sufficient to establish class-wide proof of actual injury 

and/or damages for each absent class member. Otherwise, Rule 23 would be used to truncate the 

required substantive elements of proof by each claimant in violation of the Rules Enabling Act.” 

Gutierrez v. Wells Fargo & Co., 2010 WL 1233810, at *14 (N.D. Cal. Mar. 26, 2010) (Alsup, J.). 

In his Motion, Plaintiff glosses over the fact-of-damage issue by arguing that common 

questions must predominate because his claim involves a breach of a “form contract,” which 

courts “routinely certify”; he assumes (without showing any evidence) that all drivers in the 

putative class “suffered the same alleged breach of contract injury.” Mot. at 10-12. To the 

contrary, whether a particular driver was injured at all depends on evidence that varies among the 

thousands of drivers in the putative class. Uber’s estimates for purposes of calculating the rider’s 

upfront price fluctuated relative to actual Trip time and distance—sometimes they were high 

relative to actual time and distance, sometimes low, and sometimes they matched. Trew Decl. ¶ 

7; McCrary Rpt. ¶¶ 28-46, Ex. 3. 

 To assess 

whether any specific driver was damaged at all requires an individualized analysis of the data on 

a per-Trip and per-driver basis to evaluate how much the driver was paid versus how much 

Plaintiff contends the driver should have been paid, 

. Plaintiff acknowledges as 

much by stating that “calculating damages merely involves subtracting what the class members 

were paid from what they should have been paid” using Uber’s “ride-by-ride data for every 

member of the class over the relevant time period.” Mot. at 13. 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 19 of 26
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 

 15 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

 

 

 

 

 

The only way to determine which class members were better off under Plaintiff’s theory—and 

thus even conceivably entitled to damages—is to analyze the financial impact for each Trip and 

for each driver, and then to aggregate that information on a driver-by-driver basis. Id. ¶ 40. 

In addition, even for drivers for whom the raw data might suggest had an aggregate net 

hypothetical underpayment, individualized questions exist about whether they can establish the 

required element that they were actually injured. The reason for this uncertainty is that evaluating 

injury depends not just on simply a comparison of actual and hypothetical Fares, but also 

consideration of the value each driver places on price certainty and risk avoidance. It is a basic 

tenet of economics that in general people place a positive value on those factors. McCrary Rpt. 

¶¶ 26-27. As Professor McCrary explained, “Economic agents dislike risk generally, and at least 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 20 of 26
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 

 16 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

some drivers presumptively would have preferred to avoid bearing any risk associated with 

Uber’s upfront pricing[.]” Id. This means that a driver may conclude he or she is better off with 

the price certainty and risk avoidance of actual time-and-distance based payments rather than 

payments based on upfront pricing estimates, even if those estimates may in hindsight have been 

slightly higher for that particular driver. This is no mere hypothetical issue. Under the current 

application of the TSA, drivers receive payments for the work they do—i.e., for the actual time 

and distance traveled on each Trip, regardless of any externalities. Uber assumes the variance 

and risk of its upfront pricing estimates—and absorbs the cost every time it underestimates the 

time and distance of a Trip for purposes of calculating the rider’s upfront price.

 

In contrast, Plaintiff’s theory would shift that risk entirely to drivers—drivers would earn based 

on the upfront price paid by the rider; thus, drivers would earn less than they currently do every 

time Uber underestimates the rider’s upfront price or the rider applies a promotion that reduces 

his or her charge. Id.; Edwards Decl., Ex. D (Hr’g Tr. at 3-4); id., Ex. B (Pl.’s R&O to Uber’s 

First Interrog. No. 15 (“Whatever the passenger pays minus the service fee and booking fee 

should be passed along to the driver.”). The degree to which drivers in the putative class value 

certainty in how they are paid requires further individualized inquiry bearing directly on the factof-damage element of the claim. 

The few cases Plaintiff cites in his Motion to argue that his class claim is the type that 

courts “routinely certify” establish no such thing given the factual differences in this case. Those 

cases did not involve anything like the highly individualized fact of damage issues that raise 

fundamental problems weighing against certification here. Mot. at 10-12, citing Chastain v. 

Union Sec. Life Ins. Co., 2008 WL 11333691, at *4 & n.4 (C.D. Cal. May 6, 2008) (certifying 

class in part because “the fact of injury is common”); Rodman v. Safeway, Inc., 2014 WL 988992, 

at *9 (N.D. Cal. Mar. 10, 2014) (“If Plaintiff can prevail on the merits on its theory of the 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 21 of 26
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 

 17 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

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.”); Ellsworth v. U.S. Bank, 

N.A., 2014 WL 2734953, at *20-21 (N.D. Cal. June 13, 2014) (finding predominance of common 

questions because, among other things, the proposed contract claim class excluded those states 

“where damages are an element of breach”); In re Med. Capital Sec. Litig., 2011 WL 5067208, at 

*2-9 (C.D. Cal. July 26, 2011) (certifying claims where there was no individualized issue 

regarding fact of damage for threshold liability); Ewert v. eBay, Inc., 2010 WL 4269259, at *6-11 

(N.D. Cal. Oct. 25, 2010) (certifying class where reliance, consumer status, and fact of damages 

could be resolved on a classwide basis); Vedachalam v. Tata Consulting Servs., 2012 WL 

1110004, at *13, 18 (N.D. Cal. Apr. 2, 2012) (finding predominance satisfied where arguments 

on damages related to amount of damages; opinion does not identify defendant having presented 

any fact-of-damages arguments that different class members have different net monetary 

outcomes under Plaintiff’s proposed contract interpretation). To be sure, some cases involving 

“form contracts” have been found to warrant class treatment. But Plaintiff’s class claim in this 

case presents unique and complex issues related to fundamental elements of contract liability (fact 

of damage, among other things) that go far beyond anything involved in the “form contract” cases 

that Plaintiff cites. 

2. Plaintiff Ignores Serious Intra-Class Conflicts 

The different outcomes for different class members under Plaintiff’s theory also creates an 

inherent intra-class conflict and renders him an inadequate class representative. E.g., Amchem, 

521 U.S. at 625-26 (“[A] class representative must ... possess the same interest and suffer the 

same injury as the class members.”). Even if Plaintiff himself would have been slightly better off 

under his theory of the TSA, the same cannot be said for the majority of the proposed class. 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 22 of 26
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 

 18 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

 These thousands of 

proposed class members have no interest in pursuing a breach of contract claim against Uber or 

asking that the Court issue a binding order and judgment that in essence declares they were 

overpaid. Yet that is precisely what Plaintiff seeks—a classwide ruling from the Court regarding 

the interpretation of the TSA that would apply to all drivers and that would be directly contrary to 

the interests of well over half the drivers Plaintiff purports to represent. This is a fundamental 

conflict and confirms that Plaintiff hardly “possess[es] the same interest and suffer[ed] the same 

injury” as many class members he seeks to represent. Amchem, 521 U.S. at 625-26; see also, e.g., 

Allied Orthopedic Appliances, Inc. v. Tyco Healthcare Grp., 247 F.R.D. 156, 177 (C.D. Cal. 

2007) (denying class certification on adequacy grounds, explaining “no circuit approves of class 

certification where some class members derive a net economic benefit from the very same 

conduct alleged to be wrongful by the named representative of the class ....”). 

This intra-class conflict is irreconcilable. It cannot be remedied by seeking to redefine the 

class to represent only the minority of drivers who—in retrospect—would have been 

economically better off under Plaintiff’s preferred interpretation of the TSA. To do so would 

constitute an impermissible fail-safe class defined by the very individualized liability 

determination itself. E.g., Velasquez v. HSBC Fin. Corp., 2009 WL 112919, at *4 (N.D. Cal. 

Jan. 16, 2009) (“Fail-safe classes are defined by the merits of their legal claims, and are therefore 

unascertainable prior to a finding of liability in the plaintiffs’ favor.”); Ubaldi v. SLM Corp., 2014 

WL 1266783, at *6 (N.D. Cal. Mar. 24, 2014) (a fail-safe class is “‘palpably unfair to the 

defendant’” and “unmanageable because it is unclear in such cases to whom class notice should 

be sent”) (quoting Kamar v. Radio Shack, 375 F. App’x 734, 736 (9th Cir. 2010)); Torres v. 

Mercer Canyons Inc., 835 F.3d 1125, 1138 n.7 (9th Cir. 2016) (“[D]efining the class to include 

only those individuals who were ‘injured’ ... threatens to create a ‘fail safe’ class, one that is 

defined so narrowly as to ‘preclude[] membership unless the liability of the defendant is 

established.’”); Randleman v. Fid. Nat’l Title Ins. Co., 646 F.3d 347, 352 (6th Cir. 2011) (failCase 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 23 of 26
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 

 19 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

safe class “shields the putative class members from receiving an adverse judgment. Either the 

class members win or, by virtue of losing, they are not in the class and, therefore, not bound by 

the judgment.”). Moreover, even drivers (like Plaintiff) that the Trip data might suggest on its 

face were underpaid under Plaintiff’s theory may not have any cognizable injury depending on 

their individual risk tolerance. See supra Section IV.A.1; McCrary Rpt. ¶¶ 26-27. If a single 

class were to be certified based on a uniform interpretation of the TSA, then the thousands of 

class members who would be better off under Uber’s current interpretation (compared to 

Plaintiff’s) should be represented by a driver who, unlike Plaintiff, shares their interests and seeks 

to support Uber’s interpretation. This inherent clash of interests obviously makes no practical 

sense, which is precisely why a class should not be certified in this case. E.g., Allied Orthopedic, 

247 F.R.D. at 177. 

B. Uber Has Plaintiff-Specific and Individualized Defenses That Further 

Preclude Certification on Predominance and Adequacy Grounds 

In addition, whether analyzed as a predominance issue under Rule 23(b)(3) or as an 

adequacy issue under Rule 23(a)(4), Uber has the right to present individualized defenses that 

would preclude recovery for Plaintiff and certain other class members. See 28 U.S.C. § 2072; 

Amchem, 521 U.S. at 613 (Rule 23 “shall not abridge, enlarge or modify any substantive right”); 

Monaco v. Bear Stearns Cos., 2012 WL 10006987, at *9 (C.D. Cal. Dec. 10, 2012) (“[T]he 

existence of ... [affirmative] defenses, and the fact that their application will likely involve 

individualized determinations, weighs against the certification of the proposed Subclass.”);

Aghdasi v. Mercury Ins. Grp., Inc., 2016 WL 5899301, at *2 (C.D. Cal. Jan. 12, 2016) (“As 

adjudication of the merits of these individualized arguments concerning consent would inevitably 

lead to individualized evidentiary hearings, the benefits to be derived from class certification ... 

are lost.”); Curtis v. Extra Space Storage, Inc., 2013 WL 6073448, at *2-4 (N.D. Cal. Nov. 18, 

2013) (Alsup, J.) (“Defendants must be given the opportunity to argue abandonment on a caseby-case basis. Accordingly, individual issues predominate and class certification is denied.”). 

Moreover, as this Court has explained in addressing the adequacy requirement in another case, 

“class certification should not be granted if there is a danger that absent class members will suffer 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 24 of 26
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 

 20 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

if [Dulberg] is preoccupied with defenses unique to [him].” Backus, 2016 WL 7406505, at *5. 

Uber is entitled to assert certain affirmative defenses that may doom Plaintiff’s claim and 

that also apply to different putative class members differently depending on each driver’s unique 

circumstances. Under California law, a plaintiff’s contract claim may be barred “where [he] has 

knowledge of the defendant’s breach and continues to perform under the contract and/or accepts 

the defendant’s performance without notifying the defendant of the breach[.]” Roling v. E*Trade 

Sec. LLC, 860 F. Supp. 2d 1035, 1039-40 (N.D. Cal. 2012); see also Robinson v. Onstar, LLC, 

2016 WL 4493733, at *5 (S.D. Cal. Aug. 25, 2016); Cal. Evid. Code § 623 (codifying estoppel 

defense); Lassen Mun. Util. Dist. v. Kinross Gold U.S.A. Inc., 2013 WL 924623, at *10 (E.D. Cal. 

Mar. 8, 2013) (“Ratification may be implied from any acts or conduct showing an intention to 

affirm the contract, which may include an acceptance of the benefits or burdens of the contract.”). 

Individual evidence exists for Uber to present such a defense against Plaintiff. 

see also id., Ex. B (Pl.’s R&O to Uber’s First Interrog. No. 19). 

 

Were these claims to proceed individually, Uber would be able to develop evidence that other 

drivers in the putative class likely had similar information (after all, the impact of upfront pricing 

was announced on Uber’s website and in emails sent to drivers, 

) subjecting them to the same 

defenses that apply to Plaintiff. See supra § II.D. 

Of course, that type of evidence—what a driver saw and knew and when, and whether the 

driver continued to drive—will vary from driver to driver. Those drivers who were not aware (or 

did not understand) that their Fare was based “on something other than the upfront [price] paid by 

the passengers”—or stopped driving after learning of such facts—may not face the same 

affirmative defenses. But other, more knowledgeable drivers may be. Likewise, drivers who in 

the initial part of the class period benefited from Uber’s interpretation of the TSA and continued 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 25 of 26
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 

 21 UBER’S CLASS CERT OPP.

17-CV-00850-WHA 

to drive may be barred from asserting a breach of contract claim, even if, in retrospect, they later 

would have benefited from Plaintiff’s preferred interpretation. E.g., Cal. Civ. Code § 1589 

(“voluntary acceptance of the benefit of a transaction is equivalent to a consent to all obligations 

arising from it ....”); Moore v. Southtrust Corp., 2005 WL 4663636, at *15 (E.D. Va. June 10, 

2005) (granting summary judgment on contract claim because plaintiff received the benefit of 

purchases he claimed were unauthorized); Levy v. World Wrestling Entm’t, Inc., 2009 WL 

455258, at *2 (D. Conn. Feb. 23, 2009); see also McCrary Rpt. ¶ 45 (“It is also possible that 

some drivers might be better off for one period of time under Mr. Dulberg’s interpretation of the 

TSA and might be worse off for another period of time.”). These differences in the applicability 

of certain affirmative defenses further defeat predominance and adequacy. E.g., Amchem, 521 

U.S. at 613. 

V. CONCLUSION 

Plaintiff’s motion is based on assumptions about the impact of upfront pricing that are 

demonstrably incorrect. Whether a particular driver would have benefited depends on his or her 

unique driving history, as do Uber’s affirmative defenses, and Plaintiff’s proposed class claim (if 

certified and Plaintiff succeeds on the merits) would result in a judgment that, as a practical 

matter, would be “against” thousands of the drivers that Plaintiff claims he should be allowed to 

represent. Plaintiff’s Motion for Class Certification, ECF No. 67, should be denied on both 

predominance and adequacy grounds. 

Dated: January 11, 2018 O’MELVENY & MYERS LLP 

 By: /s/ Randall W. Edwards 

 Randall W. Edwards 

 Attorneys for Defendants 

 Uber Technologies, Inc. and Rasier, LLC 

Case 3:17-cv-00850-WHA Document 71 Filed 01/11/18 Page 26 of 26