Last week brought another ruling in putative class action litigation pending against Uber in federal court in California. This time it was Ehret v. Uber Technologies, Inc., 14-cv-113 (N.D. Cal 2015), wherein plaintiff alleged Uber misrepresented an automatic 20% charge on taxi rides (Uber’s uberTAXI service allowed users to request a ride in a traditional taxi cab) as purely a gratuity when it in fact retained a substantial portion for itself, violating California’s Unfair Competition Law and Consumers Legal Remedies Act.
District Judge Edward M. Chen certified as a class individuals who received an Uber email with the representation that the 20% charge would be a gratuity only, and who then arranged and paid for taxi rides through Uber’s service from April 20, 2012 to March 25, 2013. Uber narrowly dodged a much broader class composed of persons who may have viewed Uber’s website or blog posts, which also allegedly advertised the 20% automatic charge solely as a gratuity for drivers. However, as explained below, Uber’s website and blog posts figured into the Court’s certification decision.
Uber may have avoided class certification altogether here had it allowed a previous email to plaintiff (and presumably others), which stated that a 20% charge to cover gratuity and service fees will automatically be added to the fare, to stand uncontradicted. This case would appear to offer another example of a platform’s own electronic copy exposing it to liability. Were contradictory messages contained on/in the website, blog posts, emails, app and customer receipts intended?
Elaborating upon the email that triggered certification here, the Court noted that
“Unlike the website, the e-mail specifically and heavily promoted the uberTAXI service; its focus only on uberTAXI was not diluted by information about UberBLACK and UberSUV. The email featured three bullet points expressly stating that “the metered fare + 20% gratuity will be charged” to the rider. Those customers who received the email were highly likely to have seen and been exposed to the alleged misrepresentation about the 20% tip. That likelihood is enhanced by the potential additional exposure to the website and blog posts (which while alone do not create sufficient exposure, adds to the exposure by email recipients).” Slip Op. at 21.
So while the website and blog posts could not form an independent basis for certifying an even broader class, the Court found they offered further support for its decision to certify a class consisting of persons who received the subject email.