`MELODY CUNNINGHAM and
`FRUNWI MANCHO, individually and on
`behalf of all others similarly situated,
`LYFT, INC., LOGAN GREEN, and
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`Case No. 1:19-cv-11974-IT
`PLAINTIFFS’ EMERGENCY MOTION
`FOR A PRELIMINARY INJUNCTION
`Case 1:19-cv-11974-IT Document 90 Filed 03/23/20 Page 2 of 22
`Plaintiffs Melody Cunningham and Frunwi Mancho seek an emergency preliminary
`injunction enjoining Defendant Lyft, Inc. (“Lyft”) from misclassifying its drivers as independent
`contractors when they are actually employees under Massachusetts law. Because of this
`misclassification, Lyft is in particular violating the Massachusetts Earned Sick Leave Law,
`M.G.L. c. 149 § 148C, by failing to provide the drivers with paid sick leave – which will
`exacerbate the global health crisis of COVID-19 (the “coronavirus”) and which requires
`immediate emergency redress.1
`The urgency of enforcing § 148C under the unprecedented circumstances presented by
`the novel coronavirus is undeniable. The Commonwealth has already declared a state of
`emergency due to the coronavirus2, and earlier today, Governor Baker declared that a stay-at-
`home order will take effect in Massachusetts on Tuesday, March 24, 2020.3 As of this writing,
`Massachusetts has reported 777 confirmed cases of coronavirus and nine confirmed deaths.4
`Public health institutions and executive officials across the county are ordering residents to stay
`home and go out only if essential.5 In particular, they have made clear that anyone who is
`feeling sick (regardless of whether they have been diagnosed with the coronavirus) should stay
`home and isolate themselves in order to prevent spread of the disease.6
`On March 20, 2020, the Court granted Plaintiffs’ emergency motion to file an amended
`complaint to add a claim for violation of M.G.L. c. 149 § 148C. Dkt. 87.
`Massachusetts Exec. Order No. 5891: Declaration of a State of Emergency to Respond to
`COVID-19 (March 10, 2020), available at https://www.mass.gov/executive-orders/no-591-
`Gov. Charlie Baker Issues Stay-At-Home Order, WCVB, March 23, 2020,
`Mass. Issues Stay-At-Home Advisory, Closes Non-Essential Businesses, As Death Toll
`Rises to 9, Boston Globe (March 23, 2020), https://www.wcvb.com/article/massachusetts-covid-
`California, New York, and Illinois have issued state-wide shelter-in-place orders.
`What To Do if You Are Sick, Center for Disease Control and Prevention (CDC),
`Case 1:19-cv-11974-IT Document 90 Filed 03/23/20 Page 3 of 22
`Lyft drivers, along with other “gig economy” workers, have continued to work during
`this crisis, as they have generally been recognized to be providing critical essential services.7
`Yet these drivers are being denied basic workplace protections due to Lyft’s policy of
`misclassifying its drivers as independent contractors. Because Lyft does not classify its drivers
`as employees, Lyft does not even pretend to provide its drivers with paid sick leave as mandated
`by Massachusetts law. Thus, Lyft drivers who cannot afford to not work are being forced to
`continue driving despite feeling sick in order to earn an income and afford basic necessities. In
`the words of one Lyft driver, Mariah Mitchell:
` can’t self-quarantine because not working is not an option. If I don’t make enough
`money, I can’t feed my children for the next six weeks. I’m not stopping, fever or no
`fever. And that’s what most other gig workers would do too, because none of us makes
`enough money to save up for an emergency like this.8
`As described in the attached declaration, Massachusetts Lyft driver Martin El Koussa
`continued to drive for Lyft a week while feeling sick since the outbreak of the coronavirus
`pandemic. He explains that during that week, he “experienced body aches, a cough, and a sore
`throat” that may “be symptoms of coronavirus”; despite being instructed by his doctor to not
`even come into the doctor’s office (in order to avoid infecting other patients), he explains that
`without paid sick leave, “I felt that I had no choice but to keep driving because I do not have any
`other way to make money.” Declaration of Martin El Koussa (Exhibit 1) (El Koussa Decl.) ¶¶
`Rideshare drivers, such as Lyft drivers, have been exempted from the Massachusetts stay-
`at-home order, as Gov. Bakers has indicated that “transportation” services are “essential” and
`will continue operating. Jaclyn Reiss, A List of What Can Stay Open in Massachusetts, The
`Boston Globe, March 23, 2020, https://www.bostonglobe.com/2020/03/23/metro/list-what-can-
`stay-open-during-bakers-stay-at-home-advisory/. Gig economy workers have generally been
`excluded from other states’ shelter-in-place orders. See, e.g., Megan Rose Dickey, San
`Francisco’s Shelter-In-Place Order Does Not Apply to Gig Workers, TechCrunch, March 16,
`Mariah Mitchell, I Deliver Your Food, Don’t I Deserve Basic Protections, N.Y. Times,
`March 17, 2020, https://www.nytimes.com/2020/03/17/opinion/coronavirus-food-delivery-
`workers.html?referringSource=articleShare. See also Matthew Foresta, Uber Is My Primary
`Source of Income. Each Time I Drive, I Risk Contracting Coronavirus, USA Today, March 19,
`each-time-drive-risk-contracting-covid-19-column/2866159001/ (“Driving is frequently my
`primary source of income. During those times, there is no way I can pay for essentials without
`putting my health, and the health of my riders, at risk.”).
`Case 1:19-cv-11974-IT Document 90 Filed 03/23/20 Page 4 of 22
`Similarly, Massachusetts Lyft driver Vladimir Leodonis attests that he continued to drive
`for Lyft over the last few weeks, despite feeling so sick with coronavirus symptoms that he went
`to the emergency room (where he was denied a coronavirus test because he was only exhibiting
`some, and not all, the COVID-19 symptoms); Leodonis explains that he continued to drive for
`Lyft while sick because driving is his sole source of income and Lyft does not provide state-
`mandated paid sick leave that would have enabled him to afford to stop working. Declaration of
`Vladimir Leodonis (Leodonis Decl.) (Exhibit 2) ¶¶ 3-6, 8-9.10
`As these declarations demonstrate, Lyft drivers may drive many passengers each day,
`including those who have been ordered to self-quarantine or who are coming from high-risk
`locations – and drivers and passengers are clearly not able to maintain the six-foot distance
`recommended by experts to prevent the rapid spread of the coronavirus. Lyft’s misclassification
`policy is now, indisputably, endangering Lyft drivers, Lyft passengers, and the general public.
`In short, Lyft drivers are facing an immediate threat of irreparable harm – contracting and
`infecting passengers with the coronavirus and contributing to the spread of the disease to the
`general public – due to Lyft denying its drivers state-mandated paid sick leave.11
`Further, as he attests, driving for Lyft put him in a vulnerable position to contract the
`coronavirus, as his job requires him to “frequently pick up riders at the airport” and other high
`risk locations – including from the Biogen conference that recorded a high number of confirmed
`coronavirus infections – that he felt he could not decline without risking deactivation. Id. ¶¶ 5-6.
`Leodonis (like El Koussa) suspects he was infected with the coronavirus from Lyft
`passengers, specifically from picking up a passenger from the Biogen conference or from other
`high risk locations (such as the airport or University of Massachusetts – Boston, where a student
`had a confirmed case of COVID-19). Id. ¶ 6. While Leodonis felt a social responsibility to stop
`driving in order to prevent the spread of the virus, he was simply unable to stop driving due to
`financial straits created by Lyft’s lack of state-mandated paid sick leave (just as he was similarly
`unable to be selective about his passengers because he was afraid Lyft would deactivate his
`account if he rejected too many rides). Id. ¶¶ 6-10.
`In recognition of the threat to public health as a result of employers denying paid sick
`leave during this pandemic, last week Congress passed emergency federal legislation to provide
`paid sick leave to some employees. See Emergency Paid Sick Leave Act, H.R. 6201 – 2, 116th
`Congress § 5101 (2020). However, the federal Act will not cover Lyft drivers if they are not
`Case 1:19-cv-11974-IT Document 90 Filed 03/23/20 Page 5 of 22
`This Court should adjudicate this emergency motion forthwith and grant the motion for a
`preliminary injunction. On Friday, March 20, 2020, the Court denied Plaintiffs’ earlier motion
`for preliminary injunction. Dkt. 88. Plaintiffs describe below why the instant motion should
`nevertheless be granted. First, Plaintiffs note that M.G.L. c. 149 § 150 permits them to seek
`injunctive relief on behalf of themselves and all others similarly situated – regardless of whether
`the injunction they seek qualifies as “public injunctive relief”.12 Second, Plaintiffs have met the
`standard for a preliminary injunction to issue pursuant to Fed. R. Civ. P. Rule 65. Indeed, the
`emergency presented by the current crisis creates much more stark grounds for an immediate
`order than were presented in Plaintiffs’ prior request for preliminary injunction.
`First, as Plaintiffs have previously briefed (and reincorporate here by reference), see Dkt.
`4 at 12-16, Plaintiffs can easily show a likelihood of success on the merits of their
`misclassification claim, as Lyft will be unable to carry its burden under Prong B of the
`conjunctive, three-pronged “ABC” test that Massachusetts requires alleged employers to prove in
`order to justify independent contractor status for their workers. See M.G.L. c. 149 §
`recognized as employees and because of the exemption for large employers. Liss-Riordan Decl.
`¶ 2, 13. The state of emergency that led Congress to take this historic action only further
`confirms the need for immediate enforcement of any state law protections already in place.
`The reason that Plaintiffs tried to explain in their earlier motion filed in September 2019,
`Dkt. 4, that the requested injunction qualified as public injunctive relief was so that they could
`obtain the injunction from this Court, notwithstanding Lyft’s arbitration clause. See id. at 14-15.
`However, this Court has already determined that it would address Plaintiffs’ Motion for
`Preliminary Injunction prior to addressing Lyft’s motion to compel arbitration. See Dkt. 88 at 2
`(stating that “the court still retains the power to grant interim relief, if otherwise justified, for the
`interval needed to resort to the arbitrator.”) (citing Next Step Med. Co. v. Johnson & Johnson
`Int’l., 619 F3d 67, 70 (1st Cir. 2010)); Tr. Hr’ing, March 16, 2020, at 17-19, 23. Thus, based on
`its conclusion that Plaintiffs’ motion for preliminary injunction should be decided before Lyft’s
`motion to compel arbitration, the Court need not even concern itself at this juncture with the
`question of whether Plaintiffs’ request qualifies as public injunctive relief (and whether
`Massachusetts law would recognize this same exception to arbitration as California law).
`However, Plaintiffs reincorporate their argument from their previous motion for preliminary
`injunction, see Dkt. 4 at 14-16 (and set forth the argument briefly below as well) that their
`request for this injunction cannot be limited by Lyft’s arbitration clause, in order to preserve this
`argument in the event that the Court of Appeals determines that Lyft’s motion to compel
`arbitration would need to be considered before Plaintiffs’ request for preliminary injunction.
`Case 1:19-cv-11974-IT Document 90 Filed 03/23/20 Page 6 of 22
`148B(a)(2).13 As Plaintiffs can show likelihood of success on the merits of their
`misclassification claim, it is a foregone conclusion that Plaintiffs can show the likelihood of
`success of the merits of their paid sick leave claim brought under § 148C (as Lyft does not even
`pretend to comply with this statute).14
`Second, Plaintiffs can show irreparable harm to themselves and other Lyft drivers.
`Lyft’s ongoing refusal to acknowledge its drivers as employees, and thereby provide basic state-
`mandated workplace protections including paid sick leave, poses an imminent, substantial risk of
`harm to its drivers. Drivers who are sick and stay home are not receiving state-mandated sick
`pay that they are in desperate need of immediately.15 Further, faced with the choice of staying
`See Somers v. Converged Access, Inc., 454 Mass. 582, 590-91 (2009) (alleged employer
`must prove all three prongs of the three-part test of § 148B in order for individual to be properly
`classified as an independent contractor).
`Further, Plaintiffs also reincorporate their earlier argument that they can establish their
`likelihood of success in showing that Lyft’s arbitration clause cannot thwart their attempt to
`obtain injunctive relief, Dkt. 4 at 14-15, both because the relief Plaintiffs seek is in the nature of
`“public injunctive relief” (and Massachusetts would adopt the rationale of McGill v. Citibank,
`N.A., 2.Cal.5th 945 (2017)), and because Lyft drivers are exempt from the Federal Arbitration
`Act (“FAA”), 9 U.S.C. § 1, as they fall within the transportation worker exemption to the FAA,
`see Singh v. Uber Techs., 2019 WL 4282185 (3rd Cir., Sept. 11, 2019) (rideshare drivers may
`fall under § 1 transportation worker exemption); Nieto v. Fresno Beverage Co., Inc., 33 Cal.
`App. 5th 274, 276-77 (2019) (delivery drivers fall under transportation worker exemption,
`despite only making intrastate deliveries); Waithaka v. Amazon, 2019 WL 3938053, at *2–4 (D.
`Mass., Aug. 20, 2019) (same); Rittman v. Amazon, 383 F. Supp. 3d 1196, 1201-02 (W.D. Wash.
`2019) (same). See further discussion infra at note 24.
`Courts have recognized that employees’ failure to receive pay that is due can comprise
`“irreparable injury” in extreme circumstances. For example, in Aguilar v. BaineService
`Systems, Inc., 538 F. Supp. 581, 584 (S.D.N.Y. 1982), the court found a showing of irreparable
`harm under Rule 65 due to lost wages when the plaintiffs would lose their job and sole source of
`income in the absence of an injunction. See also Roland Machinery Co. v. Dresser Industries,
`Inc., 749 F. 2d 380, 386 (7th Cir. 1984) (finding irreparable harm when plaintiff proved a
`damage award seriously deficient, as it “may come too late to save plaintiff’s business. He may
`go broke while waiting, or may have to shut down his business”); Donohue v. Mangano, 886 F.
`Supp. 2d 126, 153-54 (E.D.N.Y. 2012) (“‘For a poor man ... to lose part of his salary often
`means his family will go without the essentials.’”) (quoting Sniadach v. Family Finance Corp. of
`Bay View, 395 U.S. 337, 342 n. 9, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (quoting statement of
`Congressman Gonzales, 114 Cong. Rec. 1833)).
`This is one of those extreme circumstances, where Lyft drivers’ failure to receive state-
`mandated sick pay will put them back into an unsafe situation if they have to continue working
`to make ends meet. See, e.g., Leodonis Decl. ¶¶ 3, 8-9 (feeling forced to work despite sick, due
`to lack of paid sick leave and the fact that driving is his sole source of income on which he relies
`to support himself and his parents); El Koussa Decl. ¶¶ 3, 7, 10 (also continuing to drive despite
`feeling sick because of financial necessity); see also Mitchell, supra note 8; Foresta, supra note 8.
`Case 1:19-cv-11974-IT Document 90 Filed 03/23/20 Page 7 of 22
`home without pay and risking losing access to housing, food, and other necessities of living, Lyft
`drivers across Massachusetts will continue working and thus further expose themselves to
`dozens, or even hundreds, of riders on a weekly due to this deadly disease.16
`Third, as to the balancing of harms, there can be no serious argument that helping
`prevent the spread of a global pandemic is outweighed by the cost to Lyft of coming into
`compliance with M.G.L. c. 149 § 148B, which predates Lyft’s creation.17 Lyft has simply
`Plaintiffs submit that the irreparable injury prong is heightened by the fact that the public
`is subject to increased harm if an injunction does not issue, since Lyft drivers who are not
`receiving sick pay and cannot afford to stay home are continuing to work even if they are feeling
`sick and thus endangering the public. Although the Court has stated that it does not believe that
`Massachusetts law permits Plaintiffs to seek a “public injunction”, Plaintiffs respectfully
`disagree (see infra at note 24) but also submit that the Court can take the risk of injury to the
`public into account in evaluating this prong of Rule 65. See, e.g., Holt v. Continental Group,
`Inc., 708 F. 2d 87, 91 (2d Cir. 1983) (instructing the district court to consider on remand whether
`the retaliatory discharge harmed public interest by deterring enforcement of Fair Labor Standards
`Act (by chilling employees from asserting their rights), such that it constituted irreparable injury
`under the second prong of Rule 65); Perez Gutierrez c. Mariscos El Puerto, Inc., 2019 WL
`6050727, at *3 (D.Nev. Nov. 15, 2019) (citing Holt and weighing “strong public interest in favor
`of enforcement of the FLSA” in finding “allowing defendants to continue to flout the
`requirements of the FLSA will likely result in immediate and irreparable injury to plaintiffs,
`similarly situated employees, and the public interest” and therefore plaintiffs had meet their
`burden on the second prong of Rule 65(b)); Acosta v. RK Apparel, Inc., 2018 WL 1942400, at
`*3 (C.D. Cal. March 15, 2018) (weighing irreparable injury to “public interest in that any
`shipment of  hot goods,” produced under substandard labor standards, would result in unfair
`competition, in finding that plaintiffs had meet their burden on the second prong of Rule 65(b)).
`Further, the Court may consider the irreparable harm to government revenue (insofar as the
`government may need to foot the bill for drivers’ unemployment during this crisis) under this
`prong. See, e.g., United States v. Bailey Family Chiropractic, 2018 WL 4271449, at *1 (W.D.
`Pa. Aug. 21, 2018) (finding irreparable injury to the government when employer failed to pay
`Moreover, in order to obtain an injunction, the strength of Plaintiffs’ showing on the
`other Rule 65 prongs can overcome a weaker showing on one prong. Braintree Labs, Inc. v.
`Citigroup Global Markets, Inc., 622 F. 3d 36, 42-43 (1st Cir. 2010) (irreparable harm should be
`measured “on a sliding scale, working in conjunction with a moving party’s likelihood of success
`on the merits, such that the strength of the show necessary on irreparable harm depends in part
`on the degree of likelihood of success shown.”); Ross-Simons of Warwick, Inc. v. Baccarat, Inc.,
`102 F. 3d 12 (1st Cir. 1996) (instructing that likelihood of success and irreparable harm must be
`weighed in tandem). Thus, if the Court is concerned about the strength of Plaintiffs’ showing on
`this irreparable injury prong, the overwhelming strength of Plaintiffs’ showing on the other
`prongs should alleviate this concern.
`The current version of the “ABC test” has been the law in Massachusetts under M.G.L. c.
`149 § 148B since 2004. See 2004 Mass. Legis. Serv. Ch. 193 (S.B. 2358) (WEST) (approved
`July 19, 2004). M.G.L. c. 149 § 148C in its current form was enacted in 2015.
`Case 1:19-cv-11974-IT Document 90 Filed 03/23/20 Page 8 of 22
`ignored the laws of the Commonwealth and the applicability of M.G.L. c. 149 §§ 148B and 148C
`to its drivers, and the consequences of that choice are now being wrought in dire form.
`Fourth, it is not in the public interest to allow Lyft to continue to misclassify its drivers
`and inflict public harm on its drivers, passengers, and the general public. Lyft should not be
`allowed to use litigation tactics to stall resolution and enforcement of §§ 148B and 148C no
`matter the consequences. Plaintiffs and the public simply cannot wait years, or even weeks, for
`Lyft to comply with Massachusetts’ state-mandated paid sick leave law. In the interim, the rapid
`proliferation of the virus that occurs will be irreversible.
`Moreover, the Court has the authority to and should grant this motion for a preliminary
`injunction at this stage in the litigation, prior to class certification. See infra Part III.B, at 18-20.
`For the foregoing reasons, and as set forth further below, this Court should issue an
`emergency preliminary injunction enjoining Lyft from misclassifying its drivers, so that they will
`receive the protections of Massachusetts law, including state-mandated paid sick leave, so as to
`prevent irreparable harm to Lyft drivers and serve the immediate interests of the general public.
`FACTUAL AND PROCEDURAL BACKGROUND
`On September 17, 2019, Plaintiff Cunningham filed this class action complaint alleging
`that Lyft has misclassified its drivers as independent contractors, when they are employees under
`Massachusetts law and therefore entitled to employment protections under various provisions of
`the Massachusetts wage laws. See Compl. Dkt-1, at ¶2.
`On September 23, 2019, Plaintiff moved for preliminary injunctive relief against Lyft for
`misclassifying Massachusetts drivers as independent contractors, based on the argument that Lyft
`has exacted an irreparable harm on drivers, as well as on the public generally and the
`Commonwealth of Massachusetts, by diminishing labor standards, depriving the state of tax
`revenue, and costing the state and taxpayers money in public assistance that is needed for Lyft
`drivers who cannot meet their basic needs due to their being deprived of their rights under the
`Case 1:19-cv-11974-IT Document 90 Filed 03/23/20 Page 9 of 22
`Massachusetts wage laws. Dkt. 4. On October 3, 2019, Lyft filed a Motion to Compel
`Arbitration. See Dkts. 16-17. The Court heard oral argument on December 9, 2019.18
`While those motions remained pending, on March 12, 2020, in light of the coronavirus
`pandemic, Plaintiffs submitted an emergency motion to amend their complaint in order to add a
`claim that Lyft has denied its drivers paid sick leave they are entitled to under M.G.L. c. 149 §
`148C, see Dkt. 68, and a renewed motion for preliminary injunction based upon the pressing
`crisis, Dkt. 79. The Court held a telephonic conference on March 16, 2020. At the conference,
`the Court stated that it would deny Plaintiffs’ earlier motion for preliminary injunction and
`would allow them to submit a new motion for preliminary injunction, assuming it allowed the
`motion to amend. Tr. Hr’ing March 16, 2020, at 29.19
`On March 18, 2020, the Court granted Plaintiffs’ motion to amend, Dkt. 87.20 Plaintiffs
`now file this renewed motion for preliminary injunction.
`At the argument, the Court discussed whether Plaintiffs may need to show they crossed
`state lines in order to establish they fall under the transportation worker exemption to the FAA.
`Hr’ing Tr., Dec. 9, 2019, at 44-45. While Plaintiffs do not believe that the drivers themselves
`need to cross state lines to fall under this exemption, in order to address this concern and bolster
`their argument, they filed an Amended Complaint adding Plaintiff Mancho. See Dkt. 61.
`The Court then terminated Plaintiffs’ new emergency motion for preliminary injunction,
`stating they could refile it after the Court ruled on the motion to amend. Tr. Hr’ing March 16,
`2020, at 29. The Court issued its order denying the original motion for preliminary injunction on
`March 20, 2020, Dkt. 88.
` Plaintiffs have now filed their Second Amended Complaint. Dkt. 89. Plaintiffs plan to
`file a new motion to amend tomorrow, to add as named plaintiffs the two drivers who have
`submitted affidavits in support of this motion, Martin El Koussa and Vladimir Leodonis. At the
`telephonic status conference held on March 16, 2020, Lyft argued that Plaintiff Cunningham has
`not driven recently enough to be affected by Lyft’s failure to provide Massachusetts sick leave
`pay during the coronavirus crisis. While Plaintiffs disagree that Plaintiff Cunningham would not
`have standing to pursue this claim, they attempted to submit a revised emergency motion to
`amend to add an additional named plaintiff in response to this argument raised by Lyft. Dkt. 79.
`The Court declined to allow Plaintiffs to substitute a new emergency motion to amend and
`ordered that Plaintiffs could file a new motion to amend that would be briefed and heard in the
`ordinary course, Dkt. 85, which Plaintiffs are now doing. Whether as named plaintiffs or class
`members, El Koussa and Leodonis have provided here evidence showing the harm to Lyft
`drivers (as well as the public) caused by Lyft’s failure to provide paid sick leave to its drivers.
`Case 1:19-cv-11974-IT Document 90 Filed 03/23/20 Page 10 of 22
`A. The Court Should Grant Plaintiff’s Motion for a Preliminary Injunction
`This Court has the authority to issue a preliminary injunction under Fed. R. Civ. P. 65(a)
`and (b). In order to prevail on a motion for a preliminary injunction, Plaintiffs must establish:
`(1) likelihood of success on merits; (2) that plaintiffs will suffer irreparable injury in absence of a
`preliminary injunction; (3) that such injury outweighs any harm to the defendants; and (4) that
`the injunction will not harm public interest. See Lanier Prof’l Serv., Inc. v. Ricci, 192 F.3d 1, 3
`(1st Cir. 1999). As set forth below, Plaintiffs meet all these requirements.
`1. Plaintiffs Have Shown Likelihood of Success on the Merits
`With respect to the merits, all that the Court must decide at this juncture is whether
`Plaintiffs have shown a likelihood of success on the merits. There can be little question that
`Plaintiffs satisfy this requirement.
`Indeed, Plaintiffs clearly have a likelihood of proving that they have been misclassified as
`independent contractors, since Lyft will be unable to carry its burden under Prong B of the
`conjunctive, three-prong “ABC” test: Lyft is a transportation company and its drivers provide
`transportation services. See Cotter v. Lyft, 60 F.Supp.3d 1067, 1069 (N.D. Cal. 2015) (“[T]he
`argument that Lyft is merely a platform, and that drivers perform no service for Lyft, is not a
`serious one”); see also O’Connor v. Uber Techs., Inc., 82 F. Supp. 3d 1133, 1144 (N.D. Cal.
`2015) (“[I]t strains credulity to argue that Uber is not a ‘transportation company’ or otherwise is
`not in the transportation business.”).21 Massachusetts courts regularly grant summary judgment
`At the conference held on March 16, 2020, Lyft argued that it would not be in a position
`to address the merits of this case any time soon because the case raises a “complicated” analysis
`that would require an extensive showing, the submission of expert affidavits, etc. That is simply
`not the case. The entire point of Massachusetts rigid independent contractor law, M.G.L. c. 149
`§ 148B, is that it creates a bright line test, easing the analysis of the law. Indeed, California
`recently adopted the Massachusetts “ABC” test for determining employee status in order to
`simplify the analysis. See Dynamex Operations West Inc. v. Superior Court, 4 Cal.5th 903, 964
`(2018) (adopting Massachusetts “ABC” test to “provide greater clarity and consistency, and less
`opportunity for manipulation, than a test or standard that invariably requires the consideration
`and weighing of a significant number of disparate factors on a case-by-case basis.”). The “ABC”
`test was later codified by the California legislature in California Assembly Bill No. 5 (“AB 5”),
`which the California public and legislature understood to require that “gig economy” workers
`such as Lyft drivers would be recognized as employees. See, e.g., Kate Conger and Noam
`Case 1:19-cv-11974-IT Document 90 Filed 03/23/20 Page 11 of 22
`on employee status based on an alleged employer’s inability to carry its burden under Prong B.22
`Even without the crisis of the coronavirus, a California Superior Court recently issued a
`preliminary injunction against the “gig economy” company Instacart, finding the likelihood that
`Scheiber, California Bill Makes App-Based Companies Treat Workers as Employees, N.Y.
`TIMES, Sept. 11, 2019 (“California legislators approved a landmark bill on Tuesday that requires
`companies like Uber and Lyft to treat contract workers as employees”) (emphasis supplied).
`A.B. 5, which codified the Massachusetts ABC test adopted by Dynamex, has even been referred
`to as the “gig labor bill”. Cheryl Miller, Newsom Signs Landmark Gig Labor Bill, as Court
`Cases Loom, THE RECORDER, Sept. 18, 2019,
`cases-loom/?slreturn=20200217185740; Calif. Gov. Signs Worker Misclassification Bill Into
`Law, LAW360, Sept. 18, 2019, http://law360.com/articles/1200449/calif-gov-signs-worker-
`Thus, Lyft is incorrect that there is anything complicated or difficult about the Court
`determining whether Lyft drivers are employees under the “ABC” test. In any event, all the
`Court need to decide at this point is whether Plaintiffs can show a mere “likelihood of success”
`on the merits under this test.
`In doing so, courts frequently look to logic and commonsense in determining a
`defendant’s usual course of business. See, e.g., Schwann v. FedEx Ground Package Sys., Inc.,
`2013 WL 3353776, *5 (D. Mass. July 3, 2013) (rejecting FedEx’s attempt to characterize itself
`as a “logistics” company rather than a “delivery” company, and noting “[w]hether intended as
`shorthand for a more metaphysical purveyor of logistics business entity or not, FedEx advertises
`that it offers package pick-up and delivery services and its customers have no reason to believe
`otherwise”), aff’d in part rev’d in part on other grounds, 13 F.3d 429 (1st Cir. 2016); Awuah v.
`Coverall North Am., 707 F.Supp.2d 80 (D. Mass. 2010) (granting summary judgment to cleaning
`“franchisees” on misclassification under Prong B, rejecting defendant’s contention that it was in
`the “franchising” business, rather than the cleaning business); Chaves v. King Arthur’s Lounge,
`2009 WL 3188948, *1 (Mass Super. July 30, 2009) (rejecting strip club’s attempt to characterize
`itself as akin to a sports bar, rather than an adult entertainment business and granting summary
`judgment to exotic dancers under Prong B). The Appeals Court recently affirmed a trial court’s
`grant of summary judgment to plaintiff newspaper delivery drivers on liability for
`misclassification, considering such factors as how the business holds itself out and whether the
`services provided by the plaintiffs are core to the business or merely incidental. See Carey v.
`Gatehouse, 92 Mass. App. Ct. 801, 807, 813–14 (2018).
`For other cases in which Massachusetts courts have granted summary judgment in favor
`of plaintiffs on liability for misclassification, see also Oliveira v. Advanced Delivery Sys., Inc.,
`2010 WL 4071360 (Mass. Super. July 16, 2010) (delivery drivers); Amero v. Townsend Oil
`2008 WL 5609064 (Mass. Super. Ct. Dec. 3, 2008) (oil delivery driver); Meier v. Mastec N.
`Am., Inc. Hampden C.A. No. 13-00488 (Mass. Super. April 8, 2015) (cable installers); Granite
`State Ins. Co. v. Truck Courier, Inc. 2014 WL 316670, *4 (Middlesex Super. Ct. Jan. 17, 2014)
`(truck couriers); Barbosa v. Kilnapp Enter., Inc. d/b/a Real Clean, Norfolk C.A. No. 2013-00266,
`*11-19 (Mass. Super. Ct.