Case 3:19-cv-06462-EMC Document 143 Filed 01/26/21 Page 1 of 31
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`CHRISTOPHER JAMES, et al.,
`
`Plaintiffs,
`
`v.
`
`UBER TECHNOLOGIES INC.,
`
`Case No. 19-cv-06462-EMC
`
`
`ORDER GRANTING IN PART AND
`DENYING IN PART PLAINTIFFS’
`MOTION FOR CLASS
`CERTIFICATION
`
`Defendant.
`
`Docket No. 56
`
`
`
`
`
`
`
`Plaintiffs Christopher James and Spencer Verhines are current or former Uber drivers who
`
`contend that they and a putative class of approximately 4,828 other Uber drivers are Uber’s
`
`employees and therefore eligible for various protections under the California Labor Code. See
`
`Docket No. 81 (Amended Consolidated Class Action Complaint (“Am. Compl.”)) ¶ 23. Plaintiffs
`
`raise various wage-and-hour claims under California law and seek various forms of relief,
`
`including under California’s Unfair Competition Law (UCL) and the federal Declaratory
`
`Judgment Act (DJA). Id.
`
`Pending before the Court is Plaintiffs’ motion for class certification pursuant to Federal
`
`Rule of Civil Procedure 23. See Docket No. 56 (“Mot.”). For the following reasons, Plaintiffs’
`
`motion is GRANTED in part and DENIED in part.
`
`I.
`
`BACKGROUND
`
`The Court and the parties are well acquainted with the background of this case, so it is not
`
`set forth in detail here. On May 19, 2020, Plaintiffs filed the pending motion to certify Class, see
`
`Mot, and two days later Uber filed a motion to dismiss Plaintiffs’ consolidated class action
`
`complaint. See Mot; Docket No. 61 (“MTD”).
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-06462-EMC Document 143 Filed 01/26/21 Page 2 of 31
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`On June 30, 2020, the Court dismissed, with leave to amend, the consolidated amended
`
`complaint’s claims that Uber failed to provide paid sick leave as required by section 246 of the
`
`California Labor Code, and any UCL claims premised on violations of section 246. See Docket
`
`No. 74 (“Order on MTD”). The Court also dismissed Thomas Colopy as a named Plaintiff in this
`
`case without prejudice to his claims. See id.
`
`On July 14, 2020, Messrs. James and Verhines (hereinafter, “Plaintiffs”) filed the operative
`
`amended consolidated class action complaint (hereinafter, “Amended Complaint”) alleging as
`
`follows. Plaintiffs are residents of California who drive for Uber. Am. Compl. ¶¶ 8–9, 17–18. They
`
`bring this case as a putative class action on “behalf of . . . all other individuals who have worked as
`
`Uber drivers in California who have not released all of their claims against Uber.” Id. ¶ 10. They
`
`assert claims related to their alleged misclassification as independent contractors, including (1) failure
`
`to reimburse business expenses, (2) failure to pay minimum wage, (3) failure to pay overtime, (4)
`
`failure to provide properly itemized pay statements, (5) failure to provide paid sick leave, and (6)
`
`unlawful business practices. See id. Plaintiffs seek damages dating back to February 28, 2019, as
`
`well as declaratory and injunctive relief, which would require Uber to reclassify its drivers as
`
`employees. Id. ¶ 7.
`
`II.
`
`LEGAL STANDARD
`
`Although expressly authorized by Rule 23, the “class action is ‘an exception to the usual
`
`rule that litigation is conducted by and on behalf of the individual named parties only.’” Wal–
`
`Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S.
`
`682, 700–01 (1979)). “In order to justify departure from that rule, ‘a class representative must be
`
`part of the class and possess the same interest and suffer the same injury as [her fellow] class
`
`members.’” Id. (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)).
`
`Accordingly, before certifying a class, the Court “must conduct a ‘rigorous analysis’ to
`
`determine whether the party seeking certification has met the prerequisites of Rule 23.” Mazza v.
`
`Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012) (quoting Zinser v. Accufix Rsch.
`
`Inst., Inc., 253 F.3d 1180, 1186, amended 273 F.3d 1255 (9th Cir. 2001)). The Supreme Court
`
`has made it clear that Rule 23 “does not set forth a mere pleading standard.” Comcast Corp. v.
`
`2
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-06462-EMC Document 143 Filed 01/26/21 Page 3 of 31
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Behrend, 569 U.S. 27, 33 (2013) (quoting Wal-Mart, 564 U.S. at 349). Rather, the party seeking
`
`certification must “affirmatively demonstrate” her compliance with the requirements of both Rules
`
`23(a) and 23(b). See Wal-Mart, 564 U.S. at 349.
`
`Rule 23(a) permits plaintiffs to sue as representatives of a class only if (1) “the class is so
`
`numerous that joinder of all members is impracticable” (“numerosity” requirement); (2) “there are
`
`questions of law or fact common to the class” (“commonality” requirement); (3) “the claims or
`
`defenses of the representative parties are typical of the claims or defenses of the class”
`
`(“typicality” requirement); and (4) “the representative parties will fairly and adequately protect the
`
`interests of the class” (“adequacy” requirement). Fed. R. Civ. P. 23(a)(1)-(4). The purpose of
`
`Rule 23(a)’s requirements is largely to “ensure[ ] that the named plaintiffs are appropriate
`
`representatives of the class whose claims they wish to litigate,” and to “effectively limit the class
`
`claims to those fairly encompassed by the named plaintiff’s claims.” Wal-Mart, 564 U.S. at 349
`
`(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)).
`
`If each of the Rule 23(a) requirements are satisfied, the purported class must also satisfy
`
`one of the three prongs of Rule 23(b). Here Plaintiffs seek certification under Rule 23(b)(3),
`
`which requires the Court to find that “questions of law or fact common to class members
`
`predominate over any questions affecting only individual members” (“predominance”
`
`requirement), and “that a class action is superior to other available methods for fairly and
`
`efficiently adjudicating the controversy” (“superiority” requirement). Fed. R. Civ. P. 23(b).
`
`The underlying merits of the case, while admittedly relevant at the class certification stage,
`
`should not overly cloud the Court’s certification analysis—the only question presently before the
`
`Court is whether the requirements of Rule 23 are met. See Comcast, 569 U.S. at 33–34. The fact
`
`that certain elements of proof may favor the defendant on the merits does not negate class
`
`certification; the issue is whether the proof is amenable to class treatment. Indeed, once a class is
`
`certified, the party prevailing on the merits can benefit from certification, be it Plaintiffs or
`
`Defendant.
`
`Moreover, “[n]either the possibility that a plaintiff will be unable to prove [her]
`
`allegations, nor the possibility that the later course of the suit might unforeseeably prove the
`
`3
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-06462-EMC Document 143 Filed 01/26/21 Page 4 of 31
`
`
`
`original decision to certify the class wrong, is a basis for declining to certify a class which
`
`apparently satisfies the Rule.” Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975). Indeed,
`
`even “after a certification order is entered, the judge remains free to modify it in the light of
`
`subsequent developments in the litigation.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160
`
`(1982). Ultimately, whether or not to certify a class is within the discretion of the Court. See
`
`Levya v. Medline Indus. Inc., 716 F.3d 510, 513 (9th Cir. 2013); United Steel, Paper & Forestry,
`
`Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union, AFL–CIO CLC v. ConocoPhilips
`
`Co., 593 F.3d 802, 810 (9th Cir. 2010).
`
`III.
`
`DISCUSSION
`
`This order proceeds as follows. First, the Court will apply the Rule 23(a) criteria
`
`(numerosity, commonality, typicality, and adequacy) to Plaintiffs’ claim that they are/were Uber’s
`
`employees, rather than independent contractors, and for each of their five substantive law claims:
`
`failure to (1) reimburse business expenses, (2) pay minimum wage, (3) pay overtime, (4) provide
`
`properly itemized pay statements, and (5) provide paid sick leave.
`
`Second, the Court will consider whether Plaintiffs have met their burden under Rule
`
`23(b)(3), which requires them to establish that the employment classification question, and all of
`
`their substantive claims, can be resolved with reference to predominately common proof
`
`(predominance) and that prosecuting their claims in a class action is superior to other available
`
`methods (superiority).
`
`A.
`
`Rule 23(a) Requirements
`
`1.
`
`Ascertainability and Numerosity
`
`Before analyzing numerosity under Rule 23(a)(1), courts typically require a showing that
`
`the class to be certified is ascertainable. See Daniel F. v. Blue Shield of Cal., 305 F.R.D. 115,
`
`121–22 (N.D. Cal. 2014); 7A Charles Alan Wright et al., Federal Practice and Procedure § 1760 at
`
`142–47 (3d ed. 2005). To be ascertainable, the definition of the class must be “definite enough so
`
`that it is administratively feasible for the court to ascertain whether an individual is a member”
`
`before trial, and by reference to “objective criteria.” Daniel F., 305 F.R.D. at 122; see also
`
`Newton v. Am. Debt Servs., Inc., No. 11–cv–3228–EMC, 2015 WL 3614197, at *5–*6 (N.D. Cal.
`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-06462-EMC Document 143 Filed 01/26/21 Page 5 of 31
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`June 9, 2015) (discussing ascertainability requirement). Put differently, the Court must identify
`
`“the persons (1) entitled to relief, (2) bound by a final judgment, and (3) entitled under Rule
`
`23(c)(2) to the ‘best notice practicable’ in a Rule 23(b)(3) action.” Daniel F., 305 F.R.D. at 121
`
`(quoting Manual for Complex Litigation, Fourth § 21.222 (2004)).
`
`Plaintiffs seek to certify a class of drivers who have driven for Uber in the state of
`
`California since February 28, 2019 and who opted out of Uber’s arbitration agreement.
`
`Membership in this class is objectively ascertainable from Uber’s business records. See O’Connor
`
`v. Uber (O’Connor II), No. C-13-3826 EMC, 2015 WL 5138097, at *8 (N.D. Cal. Sept. 1, 2015).
`
`Uber does not dispute that it maintains business records with respect to each of its drivers, nor is
`
`there any dispute that those records will reveal whether each putative class member drove for Uber
`
`in the state of California since February 28, 2019. In fact, Uber has already identified 4,828
`
`putative class members,1 which represent “all individuals who completed at least one ride on the
`
`Uber app in California between February 28, 2019 and August 31, 2020, attempted to opt out of
`
`arbitration, and have a California driver’s license.” Docket No. 94 (Decl. of Justin McCrary in
`
`Support of Opp’n to Mot. (“McCrary Decl.”)) ¶ 11, n. 4. The ascertainability requirement is
`
`therefore satisfied here.
`
`A plaintiff satisfies the numerosity requirement if “the class is so large that joinder of all
`
`members is impracticable.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)
`
`(quoting Fed. R. Civ. P. 23(a)(1)). While no court has set the precise number of class members
`
`that are needed to satisfy the numerosity requirement, there is general recognition that Rule
`
`23(a)(1) is satisfied when the proposed class contains one hundred or more members. See, e.g.,
`
`Wang v. Chinese Daily News, 231 F.R.D. 602, 607 (C.D. Cal. 2005) (recognizing there is a
`
`presumption of numerosity where the proposed class contains one hundred or more members),
`
`reversed on other grounds by 737 F.3d 538 (9th Cir. 2013); Ikonen v. Hartz Mountain Corp., 122
`
`F.R.D. 258, 262 (S.D. Cal. 1998) (finding a proposed class of forty members sufficient to satisfy
`
`
`1 Uber explains that this number might be an overestimation because it includes folks who
`attempted to opt out of the arbitration clause but might not have been eligible to opt out. McCrary
`Decl. at n. 4.
`
`5
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-06462-EMC Document 143 Filed 01/26/21 Page 6 of 31
`
`
`
`numerosity).
`
`Uber is not disputing that the numerosity requirement is satisfied here, nor could it, given
`
`that it has already identified almost five thousand putative class members. McCrary Decl. ¶ 11.
`
`Even if that number is an overestimation, there is little doubt that at least one hundred of the
`
`roughly five-thousand individuals who drove for Uber in California since February 2019 will meet
`
`the class definition. The numerosity requirement is therefore also satisfied here.
`
`2.
`
`Commonality
`
`In order to satisfy Rule 23(a)(2)’s commonality requirement, a plaintiff must “affirmatively
`
`demonstrate” that their claims depend upon at least one common contention the truth or falsity of
`
`which “will resolve an issue that is central to the validity” of each one of the class members’
`
`“claims in one stroke.” Wal-Mart, 564 U.S. at 350. That is, the lawsuit must call upon the court
`
`or jury to decide at least one factual or legal question that will generate a common answer “apt to
`
`drive the resolution of the litigation.” Id.; see also id. at 359 (holding that “[e]ven a single
`
`[common] question” will suffice to satisfy Rule 23(a) (quoting Nagareda, The Preexistence
`
`Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)).
`
`In this case, whether Uber misclassified its drivers as independent contractors is a common
`
`question that satisfies the commonality requirement. This Court has previously found that “the
`
`common legal issue of whether all class members should be classified as employees or
`
`independent contractors is one whose answer would not only be ‘apt to drive the resolution of the
`
`litigation,’ but could in fact be outcome determinative.” O’Connor II, 2015 WL 5138097, at *8
`
`(quoting Guifu Li v. A Perfect Franchise, Inc., No. 5:10-CV-01189-LHK, 2011 WL 4635198, at
`
`*7 (N.D. Cal. Oct. 5, 2011)). In O’Connor II, the central question—which this Court determined
`
`was capable of class-wide determination—was whether employees were misclassified as
`
`independent contractors under the common-law multi-factor test laid out in the California
`
`Supreme Court’s decision in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 769
`
`P.2d 399 (Cal. 1989). See id. at *5–*6.
`
`After this Court’s O’Connor II decision, however, the California Supreme Court adopted a
`
`new test for distinguishing between employees and independent contractors in Dynamex
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-06462-EMC Document 143 Filed 01/26/21 Page 7 of 31
`
`
`
`Operations W. v. Superior Court, 416 P.3d 1 (Cal. 2018), reh’g denied (June 20, 2018). Under
`
`the so-called “ABC” test, workers are presumptively considered to be employees unless the
`
`“hiring entity” establishes that the worker in question satisfies three conditions:
`
`(a) that the worker is free from the control and direction of the hirer
`in connection with the performance of the work, both under the
`contract for the performance of the work and in fact; and
`
`(b) that the worker performs work that is outside the usual course of
`the hiring entity’s business; and
`
`(c) that the worker is customarily engaged in an independently
`established trade, occupation, or business of the same nature as that
`involved in the work performed.
`
`
`Id. at 34 (emphasis added). The legislature has since codified the ABC test with the passage of
`
`Assembly Bill No. 5 (AB 5), and the test is now embodied in section 2775 of the California Labor
`
`Code. If the hiring entity fails to prove any one of these conditions, the plaintiffs will prevail on
`
`the merits of the question of their status as employees.
`
`As a preliminary matter, Uber vigorously argues that the ABC test does not apply to this
`
`case because Uber is not a “hiring entity” under section 2775(b)(1) of the California Labor Code.
`
`See Docket No. 92 (“Opp’n”) at 5–6; Cal. Lab. Code § 2775(b)(1) (“[P]erson providing labor or
`
`services for remuneration shall be considered an employee rather than an independent contractor
`
`unless the hiring entity demonstrates that all of the following conditions are satisfied.” (emphasis
`
`added)). Uber’s reasoning is that “the drivers do not render services to [Uber]; rather, drivers are
`
`[Uber’s] customers, who render services to [Uber’s] other customers, the riders, using the two-
`
`sided platforms [Uber] developed.” People v. Uber Techs., 270 Cal. Rptr. 3d 290, 307 (Ct. App.
`
`2020), as modified on denial of reh’g (Nov. 20, 2020). The California Court of Appeal recently
`
`rejected this argument, holding that “[r]eading the term ‘hiring entity’ in context, we think the
`
`phrase is used in Dynamex and in section 2775 for its neutrality, so that it covers both employment
`
`status and independent contractor status, and thus does not presuppose an answer one way or
`
`another.” Id. at 308 (emphasis added). Indeed, the People v. Uber Court correctly pointed out that
`
`Uber’s “hiring entity” argument poses a “false dichotomy” because “drivers’ services performed
`
`could have been characterized as having been carried out for the benefit of both the hirer and a
`
`7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-06462-EMC Document 143 Filed 01/26/21 Page 8 of 31
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`third party, benefitting each one.” Id. For example, the delivery services that drivers performed in
`
`Dynamex could have been characterized as benefiting both Dynamex, the corporate dispatcher,
`
`and the entities sending and receiving packages. Id. There is little doubt that even if customers
`
`could be deemed a “hiring entity,” Uber is a “hiring entity” as well. Therefore, the Court
`
`concludes that the ABC test applies to this case because Uber is a “hiring entity” under section
`
`2775.2 Moreover, Uber’s argument that it is not a “hiring entity” under Dynamex itself presents a
`
`legal question common to all members of the class.
`
`Having determined that the ABC test applies, the question that will generate a common
`
`answer “apt to drive the resolution of the litigation” is whether the class member drivers were
`
`misclassified as independent contractors because Uber failed to satisfy one or more prongs of the
`
`ABC test. Wal-Mart, 564 U.S. at 350. Indeed, if the court or the jury determines that Uber
`
`satisfied all three prongs of the ABC test, this class action will have reached its end. Guifu Li,
`
`2011 WL 4635198, at *7 (“If . . . Plaintiffs have been properly classified as independent
`
`contractors, the Court need not consider the additional claims that Plaintiffs have raised.”).
`
`Inversely, if the court or the jury determine that Uber did not satisfy any one of the prongs, then
`
`Plaintiffs are to be—as a class—classified as employees. See Costello v. BeavEx, Inc., 810 F.3d
`
`1045, 1059 (7th Cir. 2016) (“Because the [ABC] test is conjunctive, if [the hiring entity] cannot
`
`satisfy just one prong of the test, its couriers must be treated as employees.”). Either way, the
`
`outcome of the ABC test is “apt to drive the resolution of the litigation.” Guifu Li, 2011 WL
`
`4635198, at *7. Therefore, the commonality requirement is satisfied here.
`
`3.
`
`Typicality and Adequacy
`
`Rule 23(a)(3) requires that “the [legal] claims or defenses of the representative parties [be]
`
`typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Representative claims are
`
`
`2 Uber also argues that at least some of Plaintiffs’ claims—for example, those based on expense
`reimbursements in 2019—are governed by S.G. Borello because Dynamex only applies to wage
`order claims and AB 5 did not take effect until January 1, 2020. Opp’n at 7. But whether
`Dynamex applies to this claim—a legal issue in dispute itself—presents a common question. In
`any event, even if Borello applied, commonality is satisfied as this Court already determined in
`O’Connor II that “the worker classification claim presents a common issue capable of class-wide
`adjudication because all (or nearly all) of the individual elements of the Borello test themselves
`raise common questions which will have common answers.” 2015 WL 5138097, at *8.
`8
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-06462-EMC Document 143 Filed 01/26/21 Page 9 of 31
`
`
`
`“typical” if they are “reasonably co-extensive with those of absent class members; they need not
`
`be substantially identical.” Castillo v. Bank of Am., NA, 980 F.3d 723, 730 (9th Cir. 2020)
`
`(quoting Hanlon, 150 F.3d at 1020). Thus, the “test of typicality is whether other members have
`
`the same or similar injury, whether the action is based on conduct which is not unique to the
`
`named plaintiffs, and whether other class members have been injured by the same course of
`
`conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Moreover, courts
`
`may evaluate whether a named plaintiff is typical by determining whether she is “subject to unique
`
`defenses which threaten to become the focus of the litigation.” Id. “Class certification should not
`
`be granted if there is a danger that absent class members will suffer if their representative is
`
`preoccupied with defenses unique to [her].” Id.
`
`Rule 23(a)(4) requires that the putative class representative must “fairly and adequately
`
`protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). A named plaintiff satisfies the
`
`adequacy test if the individual has no conflicts of interest with other class members and if the
`
`named plaintiff will prosecute the action vigorously on behalf of the class. See Ellis v. Costco
`
`Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011).
`
`As other courts and commentators have noted, the typicality and adequacy inquiries tend to
`
`significantly overlap. See, e.g., Newberg on Class Actions § 3:32 (5th ed. 2015) (“Due to the
`
`related nature of the two requirements and the frequency with which they are challenged on the
`
`same grounds, many courts address the typicality and adequacy requirements in a single
`
`inquiry.”). For instance, a named plaintiff who is subject to unique defenses (i.e., may not satisfy
`
`typicality) may also have a conflict of interest with her fellow class members (i.e., be an
`
`inadequate class representative). In light of this overlap, and because Uber and the parties largely
`
`treat the two issues together in their briefs, the Court analyzes the representative Plaintiffs’ ability
`
`to represent their fellow class members with respect to all of their claims.
`
`Uber principally argues that Plaintiffs are not adequate because “independent studies”
`
`show that the vast majority of drivers oppose reclassification and would be worse off if they are
`
`9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-06462-EMC Document 143 Filed 01/26/21 Page 10 of 31
`
`
`
`reclassified as employees.3 Opp’n at 20. This Court already rejected this argument in O’Connor
`
`II, concluding that “even if Uber had demonstrated some real tension between the goals of the
`
`class representatives and some statistically significant percentage of the class members, courts
`
`have refused to find inadequacy on these grounds.” 2015 WL 5138097, at *13. Indeed, district
`
`courts in the Ninth Circuit routinely refuse to deny class certification where some—even most—of
`
`the putative class members oppose it. See e.g., Guifu Li, 2011 WL 4635198, at *9 (“The fact that
`
`all proposed class members may not like each other, or even that some potential class members
`
`may prefer their current employment situation, is not sufficient to defeat adequacy.”); Norris–
`
`Wilson v. Delta T. Grp., Inc., 270 F.R.D. 596, 606 (S.D. Cal. 2010) (“Just because potential class
`
`members disagree with the spirit of an action doesn’t mean it shouldn’t be certified. It will almost
`
`always be the case that some putative class members are happy with things as they are.”). Indeed,
`
`as Judge Conti correctly explained in Smith v. Cardinal Logistics Management Corp., where
`
`putative employees seek to invoke the protections afforded under California labor laws, the Court
`
`“must be mindful” of the fact that “the protections conferred by [these laws] have a public purpose
`
`beyond the private interests of the workers themselves.” No. 07-2104 SC, 2008 WL 4156364, at
`
`*7 (N.D. Cal. Sept. 5, 2008) (quoting S.G. Borello, 769 P.2d at 399); see also Department of
`
`Labor Administrator’s Interpretation No. 2015–1, 2015 WL 4449086, at *1 (July 15, 2015)
`
`(noting as a public policy matter that “[m]isclassification also results in lower tax revenues for
`
`
`3 In its opposition, Uber lists harms that will befall the putative class members if they are
`reclassified as employees, including that it would (1) “prevent hundreds of thousands of drivers
`from earning any income through the app;” (2) cause drivers to make less money; (3) cause drivers
`to lose the flexibility to work whenever they want; (4) cause drivers to lose their ability to use
`other ride share applications; (5) prevent drivers who operate transportation business from relying
`on employees and subcontractors; and (6) “jeopardize the emergency federal benefits available to
`drivers as self-employed workers during an unprecedented fall in demand for rides due to the
`pandemic.” Opp’n at. 21–23. But the only basis that Uber submits for these claims are
`declarations from its employees and several current drivers. These declarations are insufficient,
`because as this Court noted in O’Connor II, “it [is doubtful] that most Uber drivers or declarants
`correctly understand the pertinent legal difference between being an employee and an independent
`contractor, or the potential consequences of this [litigation].” 2015 WL 5138097, at *13.
`Moreover, these declarations are insufficient to definitely establish “that a victory for Plaintiffs in
`this lawsuit would require Uber to use ‘less flexible’ work schedules going forward.” Id. In any
`event, as discussed above, the fact that some class members may oppose the suit and the relief
`sought therein does not establish the class representation are inadequate within the meaning of
`Rule 23(a)(4).
`
`10
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-06462-EMC Document 143 Filed 01/26/21 Page 11 of 31
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`government and an uneven playing field for employers who properly classify their workers”). “It
`
`would be antithetical” to the public interest embodied in California’s Labor Code to permit a
`
`portion of Uber’s workforce “to frustrate the attempt by others to assert rights under California
`
`labor law solely because [they] are satisfied with their current jobs.” Smith, 2008 WL 4156364, at
`
`*7; Cf. Tony & Susan Alamo Found. v. Sec’y of Lab., 471 U.S. 290, 302 (1985) (“If an exception
`
`to the [Fair Labor Standards Act] were carved out for employees willing to testify that they
`
`performed work ‘voluntarily,’ employers might be able to use superior bargaining power to coerce
`
`employees to make such assertions, or to waive their protections under the Act.”). Moreover, if
`
`there are class members who truly object to the goals of this lawsuit, they are free to opt-out of the
`
`putative class after it is certified. See Dalton v. Lee Publ’ns, Inc., 270 F.R.D. 555, 560–61. (S.D.
`
`Cal. 2010).
`
`Uber also argues that Messrs. James and Verhines are not typical Uber drivers for several
`
`reasons. First, Uber contends that Messrs. James and Verhines cannot represent the interests of
`
`most Uber drivers because they use the application full time. The Court has already noted in
`
`O’Connor II that whether “some Uber drivers drive only part-time while others drive full-time . . .
`
`is irrelevant for the class-certification analysis under Borello.” 2015 WL 5138097, at *17 n. 15.
`
`Similarly here, the amount of time that drivers spend driving is irrelevant under the ABC test
`
`because, under prong A, “the relevant question is Uber’s right to control its drivers’ schedules.
`
`Because it uniformly has no such control, it is not surprising that there are significant differences
`
`between class members with respect to the actual number of hours they spend driving for Uber.”
`
`Id.
`
`Second, Uber argues that Messrs. James and Verhines are not typical Uber drivers because
`
`they do not use competitors’ applications and are not independent business owners who employ or
`
`subcontract other drivers. These distinctions are potentially legally significant under prong C of
`
`the ABC test, which requires the court or the jury to determine if the putative employee is
`
`customarily engaged in an independently established occupation, trade, or business. Dynamex,
`
`416 P.3d at 34. As an initial matter, as this Court recognized in O’Connor II, “to the extent that
`
`Uber’s ‘no typical Uber driver’ contention is focused on legally relevant differences between
`
`11
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:19-cv-06462-EMC Document 143 Filed 01/26/21 Page 12 of 31
`
`
`
`drivers . . . the argument is really a commonality or predominance argument masquerading as a
`
`typicality argument.” 2015 WL 5138097, at *10. That is because, “[i]f legally material
`
`differences between class members are so substantial that the predominance or commonality tests
`
`cannot be satisfied, then the typicality test likely cannot be satisfied either.” Id. Here, as will be
`
`discussed more fully below, the fact that some Uber drivers use competing applications and work
`
`for third-party transportation companies defeats predominance under prong C of the ABC test to
`
`the extent plaintiffs seek to certify the entire class with respect thereto. But that does not
`
`necessarily preclude certification of a class under prongs A and B of the ABC test.4
`
`Third, and finally, Uber argues that Mr. Verhines is not typical because he is seeking
`
`injunctive relief compelling drivers to be reclassified as employees even though he testified that he
`
`no longer wants to drive for Uber. Reply at 25 (citing Am. Compl. ¶¶ 7, 78–79). Uber
`
`mischaracterizes Verhines’s testimony; he simply expressed an aspiration to quit driving for Uber:
`
`“I prefer not to have to work with them at all anymore, but I may have to. I don’t know.” Docket
`
`No. 120 (Decl. of Shannon Liss-Riordan in Support of Reply (“Liss-Riordan Decl.”)), Ex. 9 at
`
`131:8, 232:22-23. This is insufficient to find that Mr. Verhines is atypical.
`
`Accordingly, the Court concludes that Messrs. James’s and Verhines’s claims are typical
`
`of their fellow class members’ claims, and that both are adequate class representatives.
`
`B.
`
`Rule 23(b)(3) Requirements
`
`Having satisfied the Rule 23(a) criteria for all of their claims, Plaintiffs must next
`
`demonstrate “the superiority of maintaining a class