United States District Court, N.D. California
MARTIN DULBERG, individually and on behalf of all others similarly situated, Plaintiff,
UBER TECHNOLOGIES, INC., and RASIER, LLC, Defendants.
ORDER RE UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
breach-of-contract class action, plaintiff moves for
preliminary approval of a revised settlement agreement.
Defendants do not oppose. To the extent stated below, the
revised class settlement is PRELIMINARILY
APPROVED. Nonetheless, the motion will not be
granted until the parties revise the settlement agreement so
that the class notice will be mailed, not e-mailed. Further
modifications to the class notice are also required.
background of this action is set forth in prior orders
(see, e.g., Dkt. No. 52). In short, plaintiff Martin
Dulberg brought this class action on behalf of Uber drivers
against defendants Uber Technologies and Rasier, LLC
(collectively, “Uber”), asserting Uber breached
its contract with Uber drivers. Uber's policy changed in
late 2016. Plaintiff alleged the new policy violated his
contract with Uber because Uber calculated costs to
passengers by estimating time and distance amounts before the
ride and then compensated drivers based on actual time and
distance amounts - keeping the difference for itself. In
January 2018, an order certified the following class (Dkt.
No. 80 at 8):
All natural persons nationwide who (1) drove for UberX or
UberSELECT; (2) opted out of arbitration; (3) transported a
passenger who was charged an upfront Fare before May 22,
2017, when Uber issued its updated fee addendum; and (4) made
less money overall on rides where they transported passengers
who were charged an upfront Fare because they were paid on a
Fare calculated based on actual time and distance values
instead of the upfront Fare calculated based on estimated
time and distance values.
moved for preliminary approval of a proposed class settlement
in the amount of $345, 622 (Dkt. No. 107 at 9). Defendants
did not oppose. After some court-ordered changes to the
settlement agreement, including direction to alter the
“released claims” section, an order preliminarily
approved the settlement agreement (Dkt. No. 121). Thereafter,
an order approved, as to form and content, the notice of
class action settlement and a schedule governing the
remaining proceedings in the action (Dkt. No. 123). In
November 2018, the settlement administrator e-mailed the
proposed class settlement notice to 4, 584 class members -
fifty-seven did not deliver. Eight class members subsequently
requested to be excluded from the settlement, and one class
member informally objected to the settlement via e-mail to
class counsel but never followed the process delineated by
the class action notice (Dkt. No. 142 ¶¶ 4-9).
February 2019, plaintiff moved for final approval of the
proposed class settlement of $345, 622. Plaintiff also
requested attorney's fees and reimbursement for expenses
(Dkt. No. 139). In April 2019, a hearing was held. Two
separate requests for information subsequently issued to the
parties (Dkt. Nos. 149, 151). Unsatisfied with the
parties' justifications for the low proposed
class-settlement, an order rejected it (Dkt. No. 153). More
specifically, over 25% of the class subject to the proposed
settlement would have recovered less than the estimated
administrative costs of mailing the checks ($1.75). Many of
the checks to be issued would have been for one cent. The
potential benefit of the settlement to the class as a whole
could not be justified. The high percentage of very low
recovery was not reasonable (id. at 1).
plaintiff tries again. His motion is unopposed. Specifically,
the revised settlement agreement has made three changes.
First, each class member will now receive the
minimum payment of $20. Those class members who would have
received more than $20, will still receive the same amount as
before. This change increases the total settlement amount
from $345, 622 to approximately $395, 000. Second,
plaintiff's counsel agreed to limit its request for
attorney's fees to 25% of the net settlement amount.
Third, Uber agreed to pay the administrative costs
of sending the revised class notice to class members. The
expenses would not come out of the settlement fund (Dkt. No.
156 at 3-5). This order follows a second oral argument.
Rule of Civil Procedure 23(e) provides that “[t]he
claims, issues, or defenses of a certified class . . . may be
settled . . . only with the court's approval.”
Preliminary approval is appropriate if “the proposed
settlement appears to be the product of serious, informed,
non-collusive negotiations, has no obvious deficiencies, does
not improperly grant preferential treatment to class
representatives or segments of the class, and falls within
the range of possible approval.” In re Tableware
Antitrust Litig., 484 F.Supp.2d 1078, 1079 (N.D. Cal.
2007) (Chief Judge Vaughn Walker) (citation omitted). The
parties' proposed settlement agreement satisfies these
Benefit to Class Members.
issue raised at the final approval hearing stemmed from the
mere pennies that would be sent to approximately 25% of the
class. This proposed settlement agreement establishes a
maximum settlement amount of approximately $395, 000 paid
directly to a maximum number of 4, 594 class members. Under
the revised settlement, the settlement amount remains $345,
622. After the expenses and fees have been taken out of the
settlement, Uber will add approximately $50, 000 to ensure no
class member will receive less than $20. This cash infusion
will go only to the class who would have received less than
$20 after the fees and expenses have been taken out. Because
no class member will now receive less than $20, this solution
falls within the range of possible approval (Dkt. No. 156-2
still a low-end recovery for the class. Evidently, this is
because the case itself has turned out to be a low-end
theory. It might be better for the average class member to
roll the dice and see if they could hit big with a jury
rather than accept a mere twenty or so dollars. But even a
“hit” would not push the average award into three
figures, now that we see how little the case was built on. It
is hard to justify the burden on the jury to try this case.