United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SANCTIONS DOCKET NO. 811
M. CHEN, UNITED STATES DISTRICT JUDGE
moves for sanctions against Class Counsel based on an e-mail
solicitation to Class Members that Uber argues reflected an
improper use of information covered by the protective order
in this case and included misleading statements in violation
of the California Rules of Professional Conduct. The Court
GRANTS IN PART and DENIES IN
PART the motion. As a sanction and as an exercise of
the Court‘s discretionary power under Rule 23(d), the
Court will direct corrective notice to the Class. The parties
are ordered to meet-and-confer and submit notice proposals to
the Court by September 5, 2017.
INTRODUCTION AND FACTUAL BACKGROUND
The Stipulated Protective Order
February 2016, after a class had been certified in this case,
see Docket Nos. 342, 395, the parties stipulated to
a two-tier protective order signed by Magistrate Judge Ryu.
See Docket Nos. 467, 478 ("Protective
Order"). Uber subsequently produced the class list to
Class Counsel under a "Highly Confidential -
Attorneys‘ Eyes Only" designation, defined under
the Protective Order as:
[A]ny documents or information . . . which, in good faith,
[the] designating Party . . . believes could place it at a
competitive disadvantage if disclosed to anyone other than
the receiving Party‘s counsel of record in this
litigation because such documents or information contain
commercially sensitive information, proprietary information,
or trade secrets, the disclosure of which is likely to cause
irreparable harm or significant injury to the competitive
position of the designating Party.
Docket No. 478 ¶ 3. The Protective Order restricted the
use of such information:
Highly Confidential-Attorneys‘ Eyes Only Information
shall be disclosed only to the receiving Party‘s
counsel of record in this litigation for purposes that are
specifically and directly related to the reasonable conduct
of this litigation, and to no other persons. Such information
shall be held in the highest confidence by each person to
whom it is disclosed, shall be used only for purposes that
are specifically related to the conduct of this
litigation, and shall not be used for any business
Id. ¶ 9 (emphasis added). The Order also
All information and/or documents produced in this action that
are Confidential or Highly Confidential-Attorneys Eyes‘
Only shall be used only for purposes of this litigation
and not for any other purpose.
Id. ¶ 13 (emphasis added). Class Counsel did
not object to or challenge the language of the order or the
designation of the class list as Highly Confidential. The
class list was thus transmitted under the Protective Order to
facilitate issuance of notice that the Court had certified a
class. See Docket No. 460.
that time, Uber has appealed several of the Court‘s
orders, including the Court‘s orders denying
Uber‘s motion to compel arbitration, see
Docket No. 404, limiting its communications with Class
Members, see Docket No. 437, and certifying a class
pursuant to Federal Rule of Civil Procedure 23(f),
see Docket No. 395. On April 11, 2016, the Ninth
Circuit granted Uber‘s petition for permission to
appeal the class certification order. See Docket No.
512. Subsequently, and after thorough review and extensive
consideration, the Court also denied preliminary approval of
a prospective class action settlement. See Docket
No. 748. All outstanding matters, with the exception of this
motion, have been stayed pending resolution of the appeals at
the Ninth Circuit.
Class Counsel‘s E-mail to Class Members
20, 2017,  Class Counsel used the class list to send
an email with the subject line: "IMPORTANT NOTICE FOR
UBER DRIVERS REGARDING YOUR RIGHTS IN A CLASS ACTION
LAWSUIT." See Ring-Dowell Decl. ¶ 3, Ex. A
body of the e-mail reads:
READ HERE AND CLICK THIS LINK IF YOU WANT U.S. TO
CONTINUE TO PURSUE CLAIMS FOR YOU AGAINST UBER (individually
if necessary) FOR EXPENSE REIMBURSEMENT AND TIPS THAT WERE
NOT PAID TO YOU Dear Uber driver:
You are getting this email because you are a member of a
certified class action we brought against Uber for violating
California wage laws, by not reimbursing drivers for their
expenses (including expenses for leasing or owning their
vehicles, maintaining the vehicles, gas, insurance, etc.) and
also for representing to passengers that tips are included in
the fare (but not distributing any portion of the fare to
drivers as tips). We have asserted that Uber is responsible
for these payments because it has misclassified drivers as
independent contractors. The federal judge in our case has
agreed that these are valid claims that can go to trial.
We started this case in 2013, and the case was certified as a
class action in 2015 on behalf of most Uber drivers in
California. (This is the original case that was filed against
Uber for misclassifying drivers. It is called
O'Connor v. Uber Technologies, Inc., C.A. No.
13-3826 (N.D. Cal.)) However, Uber has been fighting hard to
try to "decertify" the class (by enforcing an
arbitration agreement it has required all drivers to accept).
If Uber is successful, that would mean that only drivers who
sign up to bring these claims individually would be able to
recover any money, if we are successful in this case.
We are sending you this email to find out if you would like
us to continue to pursue these claims for you, individually
if necessary, in the event that the court enforces
Uber‘s arbitration clause or decertifies the class. IF
YOU WOULD LIKE TO STAY A PART OF OUR CASE, AND HAVE U.S.
PURSUE THESE CLAIMS FOR YOU INDIVIDUALLY IF NEEDED, PLEASE
CLICK THIS LINK AND FILL OUT THE FORM:
YES, PLEASE CONTINUE TO PURSUE MY CLAIM INDIVIDUALLY IF
Our representation of you is on a contingency basis, meaning
you would not be charged anything out of pocket for us to
continue to represent you, if we need to pursue a claim for
you individually. Instead, we would be paid by contingency
(meaning our firm will keep one-third of whatever we recover
for you, and the other two-thirds will go to you). If we try
to reach you for more information but cannot reach you, or if
we determine that you do not have a viable claim, we would
not be able to pursue your claim.
You can find out more information about the case, and keep
updated on developments, by visiting the website,
www.uberlawsuit.com. You can read more about our firm at
www.llrlaw.com. For other questions, feel free to contact us
Class Counsel, O'Connor v. Uber Technologies,
Shannon Liss-Riordan Lichten & Liss-Riordan, P.C.
Docket No. 811-3. At the hearing on this motion, Class
Counsel acknowledged that the e-mail had been sent to the
entire Class, approximately 240, 000 individuals.
hyperlinks in the e-mail, if followed, took users to a web
form that collected basic background information about each
driver and his or her work ...