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O'Connor v. Uber Technologies, Inc.

United States District Court, N.D. California

August 31, 2017

DOUGLAS O'CONNOR, et al., Plaintiffs,
v.
UBER TECHNOLOGIES, INC., et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SANCTIONS DOCKET NO. 811

          EDWARD M. CHEN, UNITED STATES DISTRICT JUDGE

         Uber 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.

         I. INTRODUCTION AND FACTUAL BACKGROUND

         A. The Stipulated Protective Order

         In 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 purpose.

Id. ¶ 9 (emphasis added). The Order also states:

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.

         Since 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.

         B. Class Counsel‘s E-mail to Class Members

         On June 20, 2017, [1] 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 ("Solicitation Email").

         The 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 NECESSARY
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 at uberlawsuit@llrlaw.com.
Sincerely,
Class Counsel, O'Connor v. Uber Technologies, Inc.
Shannon Liss-Riordan Lichten & Liss-Riordan, P.C. [Address Omitted]

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.

         The 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 ...


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