United States District Court, S.D. California
DELUX CAB, LLC d/b/a NATHAN CAB, SDC DELUX CAB, and LUX CAB, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
UBER TECHNOLOGIES, INC., UBER USA, LLC, RASIER, LLC, and RASIER-CA, LLC, Defendant.
ORDER REGARDING DEFENDANTS' MOTION TO DISMISS AND
MOTION TO STRIKE [Doc. No. 12]
CATHY ANN BENCIVENGO DISTRICT JUDGE.
January 27, 2017, Defendants UBER TECHNOLOGIES, INC., UBER
USA, LLC, RASIER LLC, and RASIER-CA, LLC
(“Defendants”) filed a motion to dismiss and
motion to strike class averments. [Doc. No. 12.] On March 3,
2017, Plaintiff DELUX CAB LLC d/b/a/ NATHAN CAB, SDC DELUX
CHAM and LUX CAB (“Plaintiff”) filed an
opposition to the motion. [Doc. No. 15.] On March 17, 2017,
Defendants filed a reply to the opposition. [Doc. No. 16.] On
March 31, 2017, Defendants filed a Notice of Supplemental
Authority. [Doc. No. 19.] On April 6, 2017, Plaintiff filed a
response to Defendants' notice of supplemental authority.
[Doc. No. 20.] For the reasons set forth below, the motion is
granted in part and denied in part.
Delux Cab is an independent California entity operating seven
taxicabs in San Diego, California. [Doc. No. 1
(“Compl”) ¶1.] Uber is a transportation
network company ("TNC") that competes with taxicab
services such as Delux Cab. Specifically, the Company
develops, markets, and operates an online-enabled smartphone
application and platform (the "Uber App") that
connects passengers with drivers who provide transportation
services in their personal vehicles. Compl. ¶2.
Complaint alleges that for years, Uber has engaged in a
campaign premised on false or misleading representations that
were intended to and did persuade customers to use Uber
rather than taxicabs. Specifically, Uber repeatedly touted
false and misleading advertisements regarding the purported
exceptional safety of Uber, while at the same time falsely
disparaging the safety of taxicab rides offered by taxicab
companies such as Delux Cab. Compl. ¶3.
alleges a single cause of action for violations of the Lanham
Act, 15 U.S.C. § 1125(a)(1)(B), on behalf of itself and
an alleged class of San Diego taxi operators and owners.
Compl. ¶¶ 16, 48-55. Plaintiff alleges that Uber
has made false statements relating to the safety of its
services. Plaintiff further alleges that these statements
falsely suggest that a ride requested using the Uber App is
safer than the rides offered by Plaintiff and other operators
of taxicabs in San Diego. Compl. ¶¶ 3-5, 30, 37-46,
50. As a result, Plaintiff's “customers were
induced to choose Uber's products and services over the
products and services of the taxicab industry, including
Plaintiff and the Class.” Compl. ¶ 54.
challenges the following statements made by Defendants:
31. For several years and continuing through at least May
2016, Uber's prominent "Safety" webpage on the
Company's website represented, under the tagline
"SAFEST RIDES ON THE ROAD - Going the Distance to Put
People First, " that "[w]herever you are around the
world, Uber is committed to connecting you to the safest ride
on the road." The website also boasted that Uber sets
"the strictest safety standards possible, " and
further explained that:
The specifics vary depending on what local governments allow,
but within each city we operate, we aim to go above and
beyond local requirements to ensure your comfort and security
- what we're doing in the U.S. is an example of our
standards around the world.
32. Uber also repeatedly boasted to the media about the
supposed superior safety of Uber rides and background checks.
For example, on April 24, 2014, Lane Kasselman
("Kasselman"), Uber's Head of Communications,
bragged to NBC that: "We're confident that every
ride on the Uber is safer than a taxi."
33. Similarly, Uber's Senior Communications Associate,
Central North America, Lauren Altmin, issued a statement to
NBC which stated, in part, as follows:
What I can tell you is that Uber takes passenger safety very
We work every day to connect riders with the safest rides on
the road and go above and beyond local requirements in every
city we operate.
Uber only partners with drivers who pass an industry-leading
screening that includes a criminal background check at the
county, federal, and multistate level going back as far as
the law allows. We also conduct ongoing reviews of
drivers' motor vehicle records during their time as an
Uber partner.... For more information on what makes Uber the
safest rides on the road, please see our website....
34. Uber's supposed "industry-leading"
background checks and superiority with respect to safety were
again touted in an April 29, 2014 Mashable article entitled,
"Faulty Background Checks May Put UberX Passengers at
Risk, Report Says." Specifically, Uber's Head of
Communications, Kasselman, stated:
Uber's industry-leading background checks help connect
consumers with the safest ride on the road…. Our
driver-partner background checks are more thorough than those
of taxis in most cities and include county, state and federal
screens going back seven years. We continue to improve and
are always working hard to tighten our policies and processes
to ensure that Uber remains the safest transportation option
35. The Company's false representations continued for
years. For example, on April 25, 2014, Kasselman made the
following representations in a blog post:
All Uber ridesharing and livery partners must go through a
rigorous background check. The three-step screening we've
developed across the United States, which includes county,
federal and multi-state checks, has set a new standard.... We
apply this comprehensive and new industry standard
consistently across all Uber products, including UberX.
Screening for safe drivers is just the beginning of our
safety efforts. Our process includes prospective and regular
checks of drivers' motor vehicle records to ensure
ongoing safe driving. Unlike the taxi industry, our
background checking process and standards are consistent
across the United States and often more rigorous than what is
required to become a taxi driver.
36. In order to reinforce the Company's false superior
safety proclamations, from about April 2014 through about
March 2016, Uber charged consumers using its UberX service
option, the most popular and economical option, a $1
"Safe Rides Fee." After an UberX ride was
completed, the "Safe Rides Fee" was separately
itemized on an electronic receipt sent to the consumer via
Uber's smartphone application and via e-mail. Next to the
words "Safe Rides Fee" on the receipt was a
hyperlink prompting customers to learn about Uber's
justification for the additional $1 "Safe Rides
Fee." According to the hyperlink, the "Safe Rides
Fee" was used to support, among other things, Uber's
"continued efforts to ensure the safest possible
platform for Uber riders and drivers, including an
industry-leading background check process, regular motor
vehicle checks, driver safety education, development of
safety features in the app, and insurance."
[Doc. No. 1 at 9 - 11.]
bring this motion to dismiss Plaintiff's Lanham Act claim
pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. Specifically, Defendants argue the
alleged misrepresentations are non-actionable for the
They are classic non-actionable puffery;
They are statements of ...