`
`DAVID CHIU, State Bar #189542
`City Attorney
`WAYNE K. SNODGRASS, State Bar #148137
`JEREMY M. GOLDMAN, State Bar #218888
`Deputy City Attorneys
`City Hall, Room 234
`1 Dr. Carlton B. Goodlett Place
`San Francisco, California 94102-4682
`Telephone:
`(415) 554-6762
`Facsimile:
`(415) 554-4699
`E-Mail:
`jeremy.goldman@sfcityatty.org
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`Attorneys for Defendant
`CITY AND COUNTY OF SAN FRANCISCO
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`
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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
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`Attorneys for Plaintiffs
`DOORDASH, INC. and GRUBHUB INC.
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`DOORDASH, INC. and GRUBHUB INC.,
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`Plaintiffs,
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`vs.
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`CITY AND COUNTY OF SAN FRANCISCO,
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`Defendant.
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`Case No. 3:21-cv-05502 EMC
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`STIPULATION AND [PROPOSED] ORDER
`STAYING CASE, VACATING CASE
`MANAGEMENT DATES, AND
`PROVIDING FOR EVENTUAL
`DISMISSAL
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`STIPULATION AND [PROPOSED] ORDER
`CASE NO. 3:21-cv-05502 EMC
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`Case 3:21-cv-05502-EMC Document 69 Filed 07/01/22 Page 2 of 8
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`Pursuant to Civil Local Rules 6-2 and 7-12, Plaintiffs DoorDash, Inc. and Grubhub Inc., and
`Defendant City and County of San Francisco (collectively, “the Parties”), hereby stipulate as follows:
`WHEREAS, on June 28, 2022, San Francisco Supervisor Aaron Peskin introduced the
`Ordinance attached hereto as Exhibit A (“the Ordinance”), which would amend certain provisions of
`Article 53 of the San Francisco Police Code at issue in this action;
`WHEREAS, Plaintiffs have decided that they are willing to dismiss the above-captioned action
`if the Ordinance is enacted; and
`WHEREAS, the Parties anticipate that enactment of the Ordinance may take several months in
`the ordinary legislative process;
`NOW, THEREFORE, in the interest of judicial economy and good cause showing, the
`undersigned parties, by and through their counsel of record, hereby agree and stipulate, and the Court
`hereby orders, as follows:
`1.
`This action is hereby stayed;
`2.
`All existing case management dates are vacated;
`3.
`If the Ordinance is enacted, Plaintiffs shall dismiss this action, without prejudice to their
`right to reinstate the above-captioned action (including, without limitation, the claims alleged and
`remedies sought therein), as a result of any amendment to the Ordinance or future legislation, within
`seven days of its effective date, each party to bear its own fees and costs;
`4.
`If the Ordinance is not enacted, the Parties may stipulate to, or any party may file an
`administrative motion requesting, a lifting of the stay and the establishment of new case management
`dates.
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`The Parties respectfully request that the Court enter an Order approving this Stipulation.
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`IT IS SO STIPULATED.
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`STIPULATION AND [PROPOSED] ORDER
`CASE NO. 3:21-cv-05502 EMC
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`Case 3:21-cv-05502-EMC Document 69 Filed 07/01/22 Page 3 of 8
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`Dated: July 1, 2022
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`Dated: July 1, 2022
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`DAVID CHIU
`City Attorney
`WAYNE SNODGRASS
`JEREMY M. GOLDMAN
`Deputy City Attorneys
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`By: Jeremy M. Goldman
`JEREMY M. GOLDMAN
`Attorneys for Defendant
`CITY AND COUNTY OF SAN FRANCISCO
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`GIBSON, DUNN & CRUTCHER LLP
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`By: Joshua S. Lipshutz
`Joshua S. Lipshutz
`Michael Holecek
`Attorneys for Plaintiffs
`DOORDASH, INC. and GRUBHUB INC.
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`ATTESTATION CLAUSE
`Pursuant to Civil Local Rule 5-1(i)(3), I hereby certify that I obtained in the filing of this
`document the concurrence from all parties whose electronic signatures appear above.
`Dated: July 1, 2022
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`PURSUANT TO STIPULATION, IT IS SO ORDERED.
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`DATED:_____________________
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`/s/ Jeremy M. Goldman
`JEREMY M. GOLDMAN
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`______________________________
`Hon. Edward M. Chen
`United States District Judge
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`STIPULATION AND [PROPOSED] ORDER
`CASE NO. 3:21-cv-05502 EMC
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`Case 3:21-cv-05502-EMC Document 69 Filed 07/01/22 Page 4 of 8
`Case 3:21-cv-05502-EMC Document 69 Filed 07/01/22 Page 4of 8
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`EXHIBIT A
`EXHIBIT A
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`Case 3:21-cv-05502-EMC Document 69 Filed 07/01/22 Page 5 of 8
` SUBSTITUTED
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` 06/28/2022
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`ORDINANCE NO.
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`FILE NO.
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`[Police Code - Third-Party Food Delivery Services]
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`Ordinance amending the Police Code to define core delivery service to mean a service
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`that both lists a covered establishment on all of a third-party food delivery service’s
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`platforms, including websites and mobile applications, and facilitates and/or performs
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`delivery of food and/or beverages from the establishment; to exempt from the 15% cap
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`on per-order fees, starting January 31, 2023, third-party food delivery services that
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`offer restaurants the option to obtain only core delivery service at a cost of no more
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`than 15% of the purchase price of an online order without requiring the purchase of
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`additional services, and that notify all covered establishments with which the third-
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`party food delivery services have an existing contract of this option no later than
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`December 1, 2022; and to require that contracts between a third-party food delivery
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`service and a covered establishment clearly define the fees, commissions, or charges
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`associated with contracted services.
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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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`Be it ordained by the People of the City and County of San Francisco:
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`Section 1. The Police Code is hereby amended by revising Sections 5301 (adding a
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`defined term to be placed in alphabetical sequence with other defined terms) and 5302, to
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`read as follows:
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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 69 Filed 07/01/22 Page 6 of 8
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`SEC. 5301. DEFINITIONS.
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`* * * *
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`“Core delivery service” means a service that (1) lists a covered establishment, and makes the
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`covered establishment discoverable, on all modalities or platforms offered by a third-party food
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`delivery service, including but not limited to any website, mobile application, or other internet service
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`where a third-party food delivery service lists covered establishments, and (2) facilitates and/or
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`performs the delivery (through employees or independent contractors of the third-party food delivery
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`service and/or such establishments) of food and/or beverages from covered establishments to
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`customers. Core delivery service does not include any other service that may be provided by a third-
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`party food delivery service to a covered establishment, including but not limited to advertising services,
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`search engine optimization, business consulting, or credit card processing.
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`* * * *
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`SEC. 5302. CAP ON PER-ORDER FEES; CLEAR DEFINITION OF FEES
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`REQUIRED.
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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 order that totals more than 15% of the purchase price of the
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`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 that exceeds 15% of the purchase price of online orders to that
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`covered establishment processed through the third-party food delivery service during the time
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`period covered by the fee, commission, or charge.
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`(c) Beginning on January 31, 2023, the fee limits in subsections (a) and (b) of this Section
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`5302 shall not apply to a third-party food delivery service that does both of the following:
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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 69 Filed 07/01/22 Page 7 of 8
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`(1) offers all covered establishments the option to obtain core delivery service for a total
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`fee, commission, or charge not to exceed 15% of the purchase price of the online order, without
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`requiring the purchase of additional services; and
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`(2) no later than December 1, 2022, notifies all covered establishments that have an
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`existing contract with the third-party delivery service of the option described in subsection (c)(1).
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`(d) Contracts between a third-party food delivery service and a covered establishment shall
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`clearly define the fees, commissions, or charges associated with contracted services. For example, if a
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`covered establishment enters into a contract with a third-party food delivery service for core delivery
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`service only, that contract shall clearly state a fee, commission, or charge of 15% of the purchase price
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`for core delivery service.
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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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`Case 3:21-cv-05502-EMC Document 69 Filed 07/01/22 Page 8 of 8
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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:
`DAVID CHIU, City Attorney
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`By:
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`
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`n:\legana\as2022\2000108\01610103.docx
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`/S/ Sarah Crowley
`SARAH CROWLEY
`Deputy City Attorney
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