Case 3:21-cv-05502-EMC Document 50 Filed 12/14/21 Page 1 of 6
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`GIBSON, DUNN & CRUTCHER LLP
`JOSHUA S. LIPSHUTZ, SBN 242557
`jlipshutz@gibsondunn.com
`555 Mission Street, Suite 3000
`San Francisco, CA 94105-0921
`Telephone:
`415.393.8200
`Facsimile:
`415.393.8306
`
`MICHAEL HOLECEK, SBN 281034
`mholecek@gibsondunn.com
`333 South Grand Avenue
`Los Angeles, CA 90071-3197
`Telephone:
`213.229.7000
`Facsimile:
`213.229.7520
`
`Attorneys for Plaintiffs
`DOORDASH, INC. and GRUBHUB INC.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`DOORDASH, INC. and GRUBHUB INC.,
`Plaintiffs,
`
`v.
`CITY AND COUNTY OF SAN FRANCISCO,
`
`CASE NO. 3:21-CV-05502-EMC
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`JOINT UPDATE RE PROPOSED
`ORDINANCE TO AMEND SECTIONS 5301
`AND 5302 OF THE SAN FRANCISCO
`POLICE CODE
`
`Defendant.
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`Hearing Date: December 16, 2021
`Hearing Time: 1:30 p.m.
`Hearing Place: Courtroom 5 – 17th Floor
`Hon. Edward M. Chen
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`Action Filed: July 16, 2021
`FAC Filed: Oct. 1, 2021
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`Gibson, Dunn &
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`Crutcher LLP
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`JOINT UPDATE RE PROPOSED AMENDMENT TO ORDINANCE
`
`CASE NO. 3:21-CV-05502-EMC
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`

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`Case 3:21-cv-05502-EMC Document 50 Filed 12/14/21 Page 2 of 6
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`In its reply in support of its motion to dismiss, the City wrote that “[o]n October 26, 2021,
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`Supervisor Peskin introduced an amendment to raise the cap to 20% by permitting platforms to
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`charge up to 15% for delivery services and an additional 5% for non-delivery services. See File No.
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`211131,
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`https://sfgov.legistar.com/LegislationDetail.aspx?ID=5199186&GUID=346DF058-033B-
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`4438-B414-18B5D9F2BF77.” Dkt. 49 at 4 n.1.
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`The parties jointly write to update the Court on the status of Supervisor Peskin’s proposed
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`legislation to amend Section 5301 and 5302 of the San Francisco Police Code, which is attached as
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`Exhibit A. The proposed ordinance has been referred to the Public Safety and Neighborhood
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`Services Committee (the “Committee”) for hearing, which must occur before it can return to the full
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`Board of Supervisors for first and second readings. In light of the Board’s December recess, the
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`Committee will not hear the proposed amendment before January 2022.
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`DATED: December 14, 2021
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`Respectfully submitted,
`
`GIBSON, DUNN & CRUTCHER LLP
`
`By: /s/
`
` Joshua S. Lipshutz
`Joshua S. Lipshutz
`
`Attorneys for Plaintiffs
`DOORDASH, INC. and GRUBHUB INC.
`
`DAVID CHIU
`City Attorney
`WAYNE K. SNODGRASS
`JEREMY M. GOLDMAN
`Deputy City Attorneys
`
`By: /s/
`
` Jeremy M. Goldman
`Jeremy M. Goldman
`
`Attorneys for Defendant
`CITY AND COUNTY OF SAN FRANCISCO
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`Gibson, Dunn &
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`Crutcher LLP
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`1
`JOINT UPDATE RE PROPOSED AMENDMENT TO ORDINANCE
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`CASE NO. 3:21-CV-05502-EMC
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`

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`Case 3:21-cv-05502-EMC Document 50 Filed 12/14/21 Page 3 of 6
`Case 3:21-cv-05502-EMC Document 50 Filed 12/14/21 Page 3 of 6
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`EXHIBIT A
`EXHIBIT A
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`Case 3:21-cv-05502-EMC Document 50 Filed 12/14/21 Page 4 of 6
`FILE NO. 211131
`ORDINANCE NO.
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`[Police Code - Third-Party Food Delivery Services]
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`
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`Ordinance amending the Police Code to allow third-party food delivery services to
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`charge restaurants a delivery fee of up to 15% of an online order total and a non-
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`delivery fee of up to 5% of an online order total, provided the third-party food delivery
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`services do not make their agreement to provide delivery services contingent on
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`restaurants’ agreement to pay for non-delivery services, and provided the delivery and
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`non-delivery fees are agreed to in separate contracts.
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`
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`NOTE: Unchanged Code text and uncodified text are in plain Arial font.
`Additions to Codes are in single-underline italics Times New Roman font.
`Deletions to Codes are in strikethrough italics Times New Roman font.
`Board amendment additions are in double-underlined Arial font.
`Board amendment deletions are in strikethrough Arial font.
`Asterisks (* * * *) indicate the omission of unchanged Code
`subsections or parts of tables.
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`
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`Be it ordained by the People of the City and County of San Francisco:
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`
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`Section 1. Article 53 of the Police Code is hereby amended by revising Sections 5301
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`(with the defined terms that are added to that section sequenced alphabetically within the
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`section) and 5302, to read as follows:
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`
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`SEC. 5301. DEFINITIONS.
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`* * * *
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`“Delivery fee” means a fee, commission, or charge per online order assessed by a third-party
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`food delivery service for the purpose of providing a covered establishment with a service that facilitates
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`and/or performs the delivery of food and/or beverages from such establishments to customers,
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`including listing a covered establishment on a third-party food delivery service platform. A delivery fee
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`Supervisor Peskin
`BOARD OF SUPERVISORS
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`Page 1
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`Case 3:21-cv-05502-EMC Document 50 Filed 12/14/21 Page 5 of 6
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`does not include any other fee or costs that may be charged by a third-party food delivery service to a
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`covered establishment, such as fees for advertising or credit card processing.
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`* * * *
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`“Non-delivery fee” means a fee, commission, or charge per online order assessed by a third-
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`party food delivery service to a covered establishment for a service to the covered establishment other
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`than facilitating or performing the delivery of food and/or beverages from such covered establishment
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`to customers and listing a covered establishment on a third-party food delivery service platform. Non-
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`delivery fees include but are not limited to fees for advertising the covered establishment on the third-
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`party food delivery service platform beyond a simple listing, business consulting service fees, and
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`credit card transaction fees.
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`* * * *
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`SEC. 5302. CAP ON PER-ORDER FEES.
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`(a) No third-party food delivery service may charge a covered establishment a fee,
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`commission, or charge per online orderdelivery fee that totals more than exceeds 15% of the
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`purchase price of the online order.
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`(b) No third-party food delivery service may charge a covered establishment a fee,
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`commission, or charge per online orderdelivery fee that exceeds 15% of the purchase price of
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`online orders to that covered establishment processed through the third-party food delivery
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`service during the time period covered by the fee, commission, or charge.
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`(c) Notwithstanding the limitations on a delivery fee set forth in subsections (a) and (b), above,
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`a third-party food delivery service may charge a covered establishment a non-delivery fee of not more
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`than 5% of the purchase price of an online order, provided the third party food delivery service does
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`not make its agreement to provide delivery services to a covered establishment contingent on that
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`establishment’s agreement to pay a non-delivery fee and/or accept services covered by a non-delivery
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`Supervisor Peskin
`BOARD OF SUPERVISORS
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`Page 2
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`Case 3:21-cv-05502-EMC Document 50 Filed 12/14/21 Page 6 of 6
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`fee, and provided the covered establishment agrees to the non-delivery fee in a contract separate from
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`the contract in which the covered establishment agrees to the delivery fee.
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`* * * *
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`Section 2. Effective Date. This ordinance shall become effective 30 days after
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`enactment. Enactment occurs when the Mayor signs the ordinance, the Mayor returns the
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`ordinance unsigned or does not sign the ordinance within ten days of receiving it, or the Board
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`of Supervisors overrides the Mayor’s veto of the ordinance.
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`Section 3. Scope of Ordinance. In enacting this ordinance, the Board of Supervisors
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`intends to amend only those words, phrases, paragraphs, subsections, sections, articles,
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`numbers, punctuation marks, charts, diagrams, or any other constituent parts of the Municipal
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`Code that are explicitly shown in this ordinance as additions, deletions, Board amendment
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`additions, and Board amendment deletions in accordance with the “Note” that appears under
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`the official title of the ordinance.
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`APPROVED AS TO FORM:
`DENNIS J. HERRERA, City Attorney
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`By:
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`
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`n:\legana\as2021\2000108\01561827.docx
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`/S/ Sarah Crowley
`SARAH CROWLEY
`Deputy City Attorney
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`Supervisor Peskin
`BOARD OF SUPERVISORS
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`Page 3
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