Case 1:19-cv-10308-ALC Document 60 Filed 03/08/21 Page 1 of 18
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`03/08/2021
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` 1:19-cv-10308 (ALC)
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` ORDER & OPINION
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`LEVON ALEKSANIAN, individually, on
`behalf of all others similarly situated, and as
`Class Representative, ET AL.,
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`Plaintiffs,
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`-against-
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`UBER TECHNOLOGIES INC., ET AL.,
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`Defendants.
`------------------------------------------------------------x
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`ANDREW L. CARTER, JR., United States District Judge:
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`Plaintiffs Levon Aleksanian, Sonam Lama, and Harjit Khatra (collectively, “Named
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`Plaintiffs”) bring this action individually, and on behalf of all others similarly situated (the
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`“Putative Class”), and as class representatives (collectively, “Plaintiffs”), against Defendants
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`Uber Technologies Inc., Uber Logistik, LLC and Uber USA LLC (collectively, “Uber” or
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`“Defendants”) asserting claims for breach of contract. Currently pending before the Court are
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`Uber’s motion to compel arbitration pursuant to the Federal Arbitration Act (“FAA”) and
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`Plaintiffs’ motion for discovery in connection with Uber’s motion to compel arbitration. For the
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`reasons discussed below, Plaintiffs’ motion for discovery is DENIED and Defendants’ motion to
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`compel arbitration is GRANTED. 1
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`PROCEDURAL HISTORY
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`Plaintiffs commenced this action on November 6, 2019. ECF No. 1 (“Compl.”). On May
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`1, 2020, Defendants filed a motion to compel arbitration pursuant to the FAA. ECF No. 19
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`1 On March 2, 2021, Plaintiffs submitted a pre-motion conference letter in connection with a motion to amend their
`complaint to assert NYLL claims. ECF No. 57. On March 4, 2021, Defendants responded to Plaintiffs’ letter. ECF
`No. 59. Plaintiffs’ requests for a conference and leave to file a motion to amend their complaint are DENIED. As
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`Case 1:19-cv-10308-ALC Document 60 Filed 03/08/21 Page 2 of 18
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`(“Defs.’ Mot.”). Plaintiffs opposed Defendants’ motion to compel arbitration on July 3, 2020,
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`ECF No. 35 (“Pls.’ Opp.”), and Defendants replied on July 31, 2020, ECF No. 38 (“Defs.’
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`Reply”). On July 30, 2020, Plaintiffs filed a letter motion for leave to file a sur-reply or in the
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`alternative supplement their opposition to Defendants’ motion to compel arbitration, which this
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`Court granted on August 6, 2020. ECF Nos. 37, 40. Plaintiffs filed a supplemental memorandum
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`of law in opposition to Defendants’ motion to compel arbitration on August 12, 2020. ECF
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`No. 42. On September 8, 2020, Defendants filed a notice of supplemental authority in connection
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`with their motion to compel arbitration. ECF No. 46.
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`The Court held a telephone status conference on August 18, 2020 wherein it ordered the
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`parties to brief a motion for limited discovery in connection with Defendants’ motion to compel
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`arbitration. Aug. 18, 2020 Minute Order. Plaintiffs filed their motion for discovery on September
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`1, 2020, ECF No. 43 (“Pls.’ Mot.”), Defendants opposed the motion on September 15, 2020,
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`ECF No. 47 (“Defs.’ Opp.”), and Plaintiffs filed a reply on September 22, 2020, ECF No. 48
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`(“Pls.’ Reply”). On February 5, 2021, Plaintiffs filed a letter motion for leave to file
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`supplemental authority relevant to both motions before the Court, ECF No. 49, which this Court
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`granted on February 8, 2021, ECF No. 50. Plaintiffs filed the supplemental authority on February
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`9, 2021. ECF No. 51. On February 11, 2021, Defendants filed a letter motion for leave to file
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`notice of supplemental authority in support of their motion to compel arbitration, ECF No. 52,
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`which this Court granted on February 12, 2021, ECF No. 53. Defendants filed the supplemental
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`will be discussed in the opinion below, Plaintiff is required to arbitrate claims arising out of the Agreement,
`including NYLL claims. Thus, any amendment to the complaint would be futile. See Oguejiofo v. Open Text Corp.,
`No. 09-cv-1278, 2010 WL 1904022, at *3 (S.D.N.Y. May 10, 2010) (“Since the arbitration clause applies to this
`dispute, the court lacks subject matter jurisdiction over [plaintiff’s] claim and any amendment by [plaintiff] would
`be futile.”); see also Kutluca v. PQ New York Inc., 266 F. Supp. 3d 691, 704-705 (S.D.N.Y. 2017). The Clerk of
`Court is directed to terminate ECF No. 57.
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`2
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`Case 1:19-cv-10308-ALC Document 60 Filed 03/08/21 Page 3 of 18
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`authority on February 16, 2021. ECF No. 54.2 Both motions currently before the Court are
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`deemed fully briefed. After careful consideration, Plaintiffs’ motion for discovery is DENIED
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`and Defendants’ motion to compel arbitration is GRANTED.
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`BACKGROUND3
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`Uber is a “vendor of transportation services” who contracts with drivers that operate
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`Black Car vehicles affiliated with bases owned by Uber and licensed by the New York City Taxi
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`Limousine Commission. Compl. ¶¶ 47-52. The Uber smartphone application (“Uber app”)
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`allows riders to request these drivers through Uber’s “centralized dispatch network.” Id. ¶ 51.
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`Named Plaintiffs are “present and former drivers who contracted with Uber to drive Black Cars
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`as part of Uber’s New York City fleet and who did not opt out of arbitration.” Id. ¶ 2.
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`A. Agreement and Arbitration Provision
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`Named Plaintiffs are parties to a Software License Agreement (“SLA”) and/or
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`Technology Services Agreement (“TSA”) (collectively, the “Agreement”).4 As relevant here, the
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`Agreement has a notice on the first page that it contains an Arbitration Provision:
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`2 On March 2, 2021, Plaintiffs filed a letter motion for leave to file additional supplemental authority relevant to
`both motions before the Court. ECF No. 58. This request is GRANTED. The Court has considered this authority in
`the below decision and Plaintiff need not file it separately. The Clerk of Court is directed to terminate ECF No. 58.
`3 The following background is drawn from Plaintiffs’ complaint (“Compl.”), ECF No. 1, and the agreements
`between the parties containing the arbitration provisions at issue. While these agreements are not included or
`attached to Plaintiffs’ complaint, “[a] complaint is deemed to include . . . materials incorporated in it by reference,
`and documents that, although not incorporated by reference, are ‘integral’ to the complaint.” Sira v. Morton, 380
`F.3d 57, 67 (2d Cir. 2004) (internal citations omitted). Plaintiffs reference these agreements in their complaint
`several times. See, e.g., Compl. ¶¶ 91, 97-101, 106-113. While Plaintiffs do not cite to or attach these agreements to
`their complaint, these agreements are “integral” to the complaint. See Perry v. N.Y. Law Sch., No. 03-cv-9221, 2004
`WL 1698622, at *2 n.3 (S.D.N.Y. July 28, 2004) (citing Schnall v. Marine Midland Bank, 225 F.3d 263, 266 (2d
`Cir. 2000)) (finding arbitration agreement integral to the complaint on a motion to compel arbitration).
`4 Named Plaintiffs allege that they are parties to multiple agreements, including the SLA and TSA. Plaintiff
`Aleksanian accepted Uber’s Software License (and Online Services) Agreement dated June 21, 2014. Gordon
`Decl., Ex. A (“SLA”); see also Compl. ¶ 24. Plaintiffs Lama and Khatra last accepted the UBER USA, LLC
`Technology Services Agreement dated December 11, 2015. Gordon Decl., Ex. D (“TSA”); see also Compl. ¶¶ 31,
`40. In addition to these agreements, Plaintiffs allege that Mr. Aleksanian accepted agreements dated November 10,
`2014 and April 3, 2015 (Gordon Decl., Ex. C), Compl. ¶ 24; Plaintiff Lama accepted an agreement dated April 3,
`2015, id. ¶ 31; and Plaintiff Khatra accepted agreements dated July 2013, June 2014, November 10, 2014 and April
`3, 2015, id. ¶ 40. Plaintiffs have noted some differences between the agreements; however, it appears that the
`agreements are substantially similar in regard to the relevant provisions for the purposes of this opinion.
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`3
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`Case 1:19-cv-10308-ALC Document 60 Filed 03/08/21 Page 4 of 18
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`PLEASE REVIEW THE ARBITRATION PROVISION SET FORTH BELOW IN
`SECTION 14.3 CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE
`DISPUTES WITH UBER ON AN INDIVIDUAL BASIS THROUGH FINAL AND
`BINDING ARBITRATION UNLESS YOU CHOOSE TO OPT OUT OF THE
`ARBITRATION PROVISION. . . IF YOU DO NOT WISH TO BE SUBJECT TO
`ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION
`BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 14.3
`BELOW.
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`SLA at 1; see also TSA at 1.5 The Arbitration Provision provides:
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`Except as it otherwise provides, this Arbitration Provision is intended to apply to
`the resolution of disputes that otherwise would be resolved in a court of law or
`before a forum other than arbitration. This Arbitration Provision requires all such
`disputes to be resolved only by an arbitrator through final and binding arbitration
`on an individual basis only and not by way of court or jury trial, or by way of class,
`collective or representative action.
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`Such disputes include without limitation disputes arising out of or relating to
`interpretation or application of this Arbitration Provision, including the enforceability,
`revocability or validity of the Arbitration Provision or any portion of the Arbitration
`Provision. All such matters shall be decided by an Arbitrator and not by a court or judge.
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`Except as it otherwise provides, this Arbitration Provision also applies, without
`limitation, to disputes arising out of or related to this Agreement and disputes arising out
`of or related to Your relationship with Uber, including termination of the relationship.
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`SLA § 14.3; see also TSA § 15.3.
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`Named Plaintiffs admit that they are parties to the Agreements and that they did not opt
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`out of the Arbitration Provision. Compl. ¶¶ 24, 31, 40.
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`B. Alleged Interstate Commerce
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`Plaintiffs allege that they were “expected to and regularly did transport passengers across
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`state lines while working as [] Uber driver[s],” id. ¶¶ 25, 32, 41; see also id. ¶¶ 88-89 (“All
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`Named Plaintiffs and Putative Class members were required to perform interstate trips . . . [and]
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`did in fact perform interstate trips.”), and that:
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`5 The TSA is substantially the same as the SLA in regard to the provisions related to arbitration, with some minor
`differences not relevant here.
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`4
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`Case 1:19-cv-10308-ALC Document 60 Filed 03/08/21 Page 5 of 18
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`• “4.36% of the trips Aleksanian performed for Uber involved transporting a passenger
`across state lines. These interstate trips accounted for 10.12% of the total sales volume of
`Uber trips provided by Mr. Aleksanian,” id. ¶ 27;
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`•
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`•
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`“During [an] eight-week period from January 4, 2016 to February 22, 2016, 7.55% of the
`number of trips Lama performed for Uber involved transporting passengers across state
`lines. During the same time period, these interstate trips accounted for 19.78% of the
`total stated cost of rides Lama provided,” id. ¶¶ 35-36;
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`“[O]n information and belief, given [Khatra’s] long history with Uber, his percentage of
`interstate trips is similar to other Named Plaintiffs and the putative class as a whole,” id.
`¶ 43.
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`Plaintiffs also allege that “Uber’s New York City business model is structured to provide
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`not only transportation within New York City and New York State, but interstate transportation
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`as well” and that “Uber’s policies contemplate the regular performance of interstate
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`transportation work by its drivers.” Id. ¶ 76. In support of these allegations, Plaintiffs cite to
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`multiple Uber policies and actions including:
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`• The imposition of a $20 surcharge on all trips between NYC and New Jersey, id. ¶ 77;
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`• The advertising of flat rates for trips between Manhattan and Newark International
`Airport, id. ¶ 78;
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`• Policies stating that trips originating in New York City may last as long as four hours;
`more specifically that passengers may choose any destination within four hours of their
`pick-up location, and thus New York City-based Uber drivers may be dispatched to
`locations in New Jersey, Connecticut, Pennsylvania, Rhode Island, Massachusetts,
`Vermont, Delaware, or Maryland, id. ¶¶ 80-82;
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`• The maintenance of a “deactivation policy that stated that drivers’ accounts could be
`permanently deactivated for excessive cancellation rates,” making it so that “no driver
`had the option to exclude performing interstate trips,” since it was not possible to
`determine the passenger’s destination until after the passenger had entered the vehicle,
`and refusal to accept rides after learning of the passenger’s destination counted as
`cancellations, id. ¶¶ 83-85;
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`•
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`“The Uber app is programmed to anticipate interstate trips and makes pricing adjustments
`when it recognizes an interstate trip,” id. ¶ 86.
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`5
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`Case 1:19-cv-10308-ALC Document 60 Filed 03/08/21 Page 6 of 18
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`C. Alleged Breach of Contract Claims
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`Plaintiffs allege that Uber breached the Agreement to which they are a party by
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`(1) deducting sales tax and a BCF surcharge from driver’s earnings, as opposed to solely
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`deducting Uber’s fee per ride; and (2) engaging in an “Upfront Pricing” scheme.
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`The Agreement defines “Fare” as “the amount (including applicable taxes and fees) that
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`the [contracting driver] is entitled to charge the User for the Ride . . .” Id. ¶ 97; see also id.
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`¶¶ 106, 109-110. The Agreement also required drivers pay Uber a “Fee” per ride. Id. ¶¶ 99, 111.
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`This Fee would be deducted from the Fares earned by the drivers, and “the remainder of the
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`Fare” would be remitted to the driver. Id. ¶¶ 101-102.6 According to Plaintiffs, nothing in these
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`contracts “empower[ed] Uber . . . to remove any additional amounts from the fare.” Id. ¶ 103; see
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`also id. ¶¶ 117-18. “Yet, at all times while these agreements were in force, Uber . . . collected the
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`entire Fare from passengers, and remitted to drivers the Fare minus Uber’s Fee, and additionally,
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`minus amounts represented as sales tax and the BCF surcharge.” Id. ¶ 104; see also id. ¶ 119.
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`Plaintiffs also allege that Uber engaged in an Upfront Pricing scheme “whereby the
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`customer received a fare quote in advance of the trip,” whereas drivers “continued to receive a
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`fare based on the base charge, plus time, plus distance formula.” Id. ¶ 124. “[T]he Upfront Price
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`quoted to customers was often greater . . . [however], Uber retained the excess without sharing
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`such monies with drivers.” Id. ¶ 127. “Uber’s failure to pass on to the driver the fare charged to
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`the passenger minus its service fee is a violation of the contract.” Id. ¶ 131.
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`Plaintiffs commenced this action as a class action pursuant to Rule 23 of the Federal
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`Rules of Civil Procedure on behalf two putative classes: (1) Uber drivers seeking to recover
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`6 In the November 2014, April 2015 and December 2015 agreements, Uber agreed to remit to drivers “the Fare less
`the applicable Service Fee; (b) the Tolls; and (c) depending on the region, certain taxes and ancillary fees.” Id.
`¶¶ 112-13. However, “Uber did not remit tax to [NYC] drivers . . . as New York law requires dispatching Black Car
`bases to collect and remit tax.” Id. ¶ 116.
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`6
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`Case 1:19-cv-10308-ALC Document 60 Filed 03/08/21 Page 7 of 18
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`damages resulting from Uber’s alleged unlawful deduction of a sales tax and BCF surcharge
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`from driver’s earnings, id. ¶ 136, and (2) Uber drivers seeking to recover damages resulting from
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`Uber “calculating driver earnings on an amount less than the actual customer fare, according to
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`their Upfront Pricing system,” id. ¶ 146.
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`STANDARD OF REVIEW
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`The FAA provides that “‘[a] written provision in . . . a contract . . . to settle by arbitration
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`a controversy thereafter arising out of [the] contract . . . shall be valid, irrevocable, and
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`enforceable.’” See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 228 (2d Cir. 2016) (quoting
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`9 U.S.C. § 2). The FAA establishes “a liberal federal policy favoring arbitration agreements,
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`notwithstanding any state substantive or procedural policies to the contrary.” Moses H. Cone
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`Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), superseded on other grounds by
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`statute, 9 U.S.C. § 16(b); see also Epic Sys. Corp. v. Lewis, --- U.S. ---, 138 S. Ct. 1612, 1621
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`(2018).
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`If the existence of the arbitration agreement itself it not at issue and the dispute is
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`within the scope of the arbitration agreement, courts must “direct[] the parties to proceed to
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`arbitration in accordance with the terms of the agreement.” 9 U.S.C. § 4; see also AT&T Mobility
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`LLC v. Concepcion, 563 U.S. 333, 344 (2011). In deciding whether claims are subject to
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`arbitration, the Court must determine (1) whether the parties entered into a valid agreement to
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`arbitrate and (2) whether the claim falls within the scope of the agreement. In re Am. Express
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`Fin. Advisors Sec. Litig., 672 F.3d 113, 128 (2d Cir. 2011) (citing ACE Capital Re Overseas Ltd.
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`v. Cent. United Life Ins. Co., 307 F.3d 24, 28 (2d Cir. 2002)).
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`“In a typical motion to compel arbitration, the Court would apply a standard similar to
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`that of a summary judgment motion . . . and some discovery may be allowable or necessary.”
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`Case 1:19-cv-10308-ALC Document 60 Filed 03/08/21 Page 8 of 18
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`Lismore v. Societe Generale Energy Corp., No. 11-cv-6705, 2012 WL 3577833, at *1 (S.D.N.Y.
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`Aug. 17, 2012) (citing DuBois v. Macy’s East Inc., 338 F. App’x 32, 33 (2d Cir. 2009)).
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`However, “where the issue of whether the residual clause of § 1 of the FAA applies arises in a
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`motion to compel arbitration, the motion to dismiss standard applies if the complaint and
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`incorporated documents provide a sufficient factual basis for deciding the issue.” Singh v. Uber
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`Techs. Inc., 939 F.3d 210, 218 (3d Cir. 2019); see also Moss v. BMO Harris Bank, N.A., 24
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`F. Supp. 3d 281, 285 (E.D.N.Y. 2014) (“[W]hen a court considers the motion to compel before
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`discovery has taken place, and in the context of a motion to dismiss, it treats the allegations in
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`plaintiffs’ complaint as true.” (internal citations omitted)); Moses, 460 U.S. at 22 (noting
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`“Congress’s clear intent, in the Arbitration Act, to move the parties to an arbitrable dispute out of
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`court and into arbitration as quickly and easily as possible . . . with only restricted inquiry into
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`factual issues.”). If the documents do not suffice or if “plaintiff responds to the motion with
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`additional facts that place the issue in dispute, the parties should be entitled to discovery on the
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`question of arbitrability before a court entertains further briefing.” Singh, 939 F.3d at 218
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`(internal citations and quotation marks omitted).
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`DISCUSSION
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`The core issue in this dispute is whether Defendants can compel arbitration of Plaintiffs’
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`claims pursuant to the terms of the Agreement, and more specifically, whether Plaintiffs belong
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`to a class of workers “engaged in interstate commerce” such that they are exempt from the FAA
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`pursuant to § 1. Plaintiffs have filed a motion for discovery in connection with Defendants’
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`motion to compel arbitration, seeking information on interstate trips and trips to
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`airports/transportation hubs. Pls.’ Mot. at 2. Because the Court concludes that this issue can be
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`decided on the face of the complaint, the Court denies Plaintiffs’ motion for discovery. The
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`Case 1:19-cv-10308-ALC Document 60 Filed 03/08/21 Page 9 of 18
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`Court also concludes that Uber drivers do not belong to a class of workers “engaged in interstate
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`commerce.” Thus, Plaintiffs are not exempt from the FAA pursuant to § 1. Lastly, the Court
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`concludes that the parties entered into a valid agreement to arbitrate and that Plaintiffs’ claims
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`fall within the scope of that agreement. Therefore, the Court hereby grants Defendants’ motion to
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`compel arbitration.
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`I.
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`Plaintiffs Are Not Entitled to Discovery on Issue of Whether Plaintiffs Are in a Class
`of Workers Engaged in Interstate Commerce
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`In their motion for discovery, Plaintiffs seek information on interstate trips and trips to
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`airports/transportation hubs, which Plaintiffs assert is relevant to deciding the issue of whether
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`Plaintiffs belong to a class of workers “engaged in interstate commerce.” Pls.’ Mot. at 2. Because
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`the Court concludes that this issue can be decided on the face of the complaint, the Court denies
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`Plaintiffs’ motion for discovery. See Singh, 939 F.3d at 218.
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`II.
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`Plaintiffs Are Not Exempt from the FAA Pursuant to § 1
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`The FAA was originally enacted in 1925 in order to “reverse the longstanding judicial
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`hostility to arbitration agreements that had existed at English common law and had been adopted
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`by American courts.” Kowalewski v. Samandarov, 590 F. Supp. 2d 477, 480 (S.D.N.Y. 2008)
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`(quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991)) (internal quotation
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`marks omitted). It provides that “[a] written provision in any . . . contract evidencing a
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`transaction involving commerce to settle by arbitration a controversy thereafter arising out of
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`such contract or transaction, . . . shall be valid, irrevocable, and enforceable.” 9 U.S.C. § 2. And,
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`Sections 3 and 4 of the FAA “often require a court to stay litigation and compel arbitration
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`‘accord[ing to] the terms’ of the parties’ agreement.” New Prime Inc. v. Oliveira, --- U.S. ---,
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`139 S. Ct. 532, 537 (2019); see also 9 U.S.C. §§ 3, 4. However, the Supreme Court has held that
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`a court should first decide whether § 1 applies before ordering arbitration. New Prime, 139 S. Ct.
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`at 537. Section 1 provides that “nothing” in the FAA “shall apply to contracts of employment of
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`seamen, railroad employees, or any other class of workers engaged in foreign or interstate
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`commerce.” 9 U.S.C. § 1.
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`A. Plaintiffs Do Not Belong to a Class of Workers “Engaged in Interstate
`Commerce”
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`Contrary to Plaintiffs’ assertions, Plaintiffs do not belong to “any other class of workers
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`engaged in . . . interstate commerce.” 9 U.S.C. § 1. In Circuit City Stores, Inc. v. Adams, the
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`Supreme Court applied the maxim of ejusdem generis to hold that “any other class of workers”
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`was limited to transportation workers. 532 U.S. 105, 114-15, 119 (2001). The statutory canon of
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`ejusdem generis provides that “[w]here general words follow specific words in a statutory
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`enumeration, the general words are construed to embrace only objects similar in nature to those
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`objects enumerated by the preceding specific words.” Id. at 114-15 (internal citations and
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`quotation marks omitted). The Supreme Court reasoned that adopting the Ninth Circuit’s view
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`that § 1 exempted all employment contracts falling within the authority of § 2 would “fail[] to
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`give independent effect to the statute’s enumeration of the specific categories of workers”
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`preceding the residual clause. Id. at 114. They also explained that the phrases “in commerce” and
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`“engaged in commerce” (used in § 1) “are understood to have a more limited reach” than
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`“involving commerce” or “affecting commerce” (used in § 2), and therefore it would not make
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`sense for § 1 to exempt all employment contracts falling within the authority of § 2. Id. at 115-
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`119. The Supreme Court emphasized that the § 1 exclusion provision should “be afforded a
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`narrow construction,” given the placement of the phrase “engaged in commerce” and the FAA’s
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`purpose of “overcom[ing] judicial hostility to arbitration.” Id. at 118.
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`While it is clear that the residual clause is only applicable to transportation workers, it is
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`less clear what kinds of transportation workers are exempt pursuant to § 1. While the Second
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`Case 1:19-cv-10308-ALC Document 60 Filed 03/08/21 Page 11 of 18
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`Circuit has not addressed the issue, several other Circuits have recently issued opinions offering
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`some guidance. See Wallace v. Grubhub Holdings, Inc., 970 F.3d 798 (7th Cir. 2020); Waithaka
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`v. Amazon.com, Inc., 966 F.3d 10 (1st Cir. 2020), petition for cert. filed, 20-1077 (Feb. 08,
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`2021); Singh v. Uber Techs. Inc., 939 F.3d 210 (3d Cir. 2019); In re Grice, 974 F.3d 950 (9th
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`Cir. 2020); Rittman v. Amazon.com, Inc., 971 F.3d 904 (9th Cir. 2020).
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`“[I]n determining whether the exemption applies, the question is ‘not whether the
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`individual worker actually engaged in interstate commerce, but whether the class of workers to
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`which the complaining worker belonged engaged in interstate commerce.’” Wallace, 970 F.3d at
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`800 (quoting Bacashihua v. U.S. Postal Serv., 859 F.2d 402, 405 (6th Cir. 1988)) (emphasis in
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`original); see also Rogers v. Lyft, Inc., 452 F. Supp. 3d 904, 915 (N.D. Cal. 2020) (“The
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`plaintiffs’ personal exploits are relevant only to the extent they indicate the activities performed
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`by the overall class.”), appeals docketed, 20-15689 (9th Cir. Apr. 16, 2020), 20-15700 (9th Cir.
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`Apr. 17, 2020). The member of the class does not necessarily need to “engage in interstate
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`commerce” or cross state lines to qualify for the exemption. See Wallace, 970 F.3d at 800; see
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`also Waithaka, 966 F.3d at 26 (holding that “last-mile delivery workers who haul goods on the
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`final legs of interstate journeys are transportation workers ‘engaged in . . . interstate commerce,’
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`regardless of whether the workers themselves physically cross state lines”); see also Rittman v.
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`Amazon.com, Inc., 971 F.3d 904, 915 (9th Cir. 2020) (concluding that Ҥ 1 exempts
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`transportation workers who are engaged in the movement of goods in interstate commerce, even
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`if they do not cross state lines”), cert. denied, No. 20-622, 2021 WL 666403 (Feb. 22, 2021).
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`“By the same token, someone whose occupation is not defined by its engagement in interstate
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`commerce does not qualify for the exemption just because [he] occasionally performs that kind
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`Case 1:19-cv-10308-ALC Document 60 Filed 03/08/21 Page 12 of 18
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`of work.” Wallace, 970 F.3d at 800 (citing Hill v. Rent-A-Center, 398 F.3d 1286, 1289-90 (11th
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`Cir. 2005)).
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`The next question is what it means to be “engaged in interstate commerce.” Courts have
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`previously recognized that “there is no[] clear definition or consensus of what constitutes a
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`‘transportation worker’ who is ‘engaged in interstate commerce,’” Heller v. Rasier, LLC, No.
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`17-cv-8545, 2020 WL 413243, at *6 (C.D. Cal. Jan. 7, 2020), and that there is “a gap in the case
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`law . . . between cases in which no member of a class transported goods or services across a state
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`line and cases in which all members of a class did so,” Sienkaniec v. Uber Techs., Inc., 401
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`F. Supp. 3d 870, 872 (D. Minn. 2019) (emphasis in original). However, the recent cases out of
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`the First, Third, Seventh and Ninth Circuits are helpful in determining what constitutes a
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`“transportation worker” who is engaged in “interstate commerce.” In Wallace, the Seventh
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`Circuit held that “[t]o show that they fall within this exception, the plaintiffs had to demonstrate
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`that the interstate movement of goods is a central part of the job description of the class of
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`workers to which they belong.” Wallace, 970 F.3d at 803 (emphasis added) (finding that
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`Grubhub food delivery drivers were not exempt from the FAA pursuant to § 1).
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`The recent cases out of the First, Third and Ninth Circuit support rather than contradict
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`the holding of the Seventh Circuit. The issue in Waithaka was whether Amazon last-mile
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`delivery workers who never crossed state lines belonged to a class of workers who “engaged in
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`interstate commerce.” Waithaka, 966 F.3d 10. The First Circuit held that “[b]y virtue of their
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`work transporting goods or people ‘within the flow of interstate commerce,’ Waithaka and other
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`AmFlex workers are ‘a class of workers engaged in . . . interstate commerce.’” Id. at 26 (internal
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`citations omitted); see also Rittman, 971 F.3d 904 (reaching the same conclusion as the First
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`Circuit through similar reasoning). In coming to that conclusion, the First Circuit reasoned that
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`“[t]he nature of the business for which a class of workers perform their activities must inform
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`[the] assessment [of whether a class of workers is engaged in interstate commerce].” Id. at 22.
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`The Ninth Circuit agreed with this reasoning in In re Grice and Rittman, approvingly quoting
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`this exact same language from Waithaka. In re Grice, 974 F.3d at 956 (denying writ of
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`mandamus because district court had not committed clear error in referring petitioner’s case
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`against Uber to arbitration); Rittman, 971 F.3d at 917-18. And, in Singh, the Third Circuit
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`instructed that on remand, the district court might consider “information regarding the industry in
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`which the class of workers is engaged” and “information regarding the work performed by those
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`workers,” among other factors, to determine whether a class of workers is “engaged in interstate
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`commerce.” Singh, 939 F.3d at 227-28.
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`Applying the standard from the Seventh Circuit, the Court holds that Plaintiffs do not
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`belong to a class of workers “engaged in interstate commerce.”7 As the court in Rogers v. Lyft
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`observed,
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`[t]heir work predominantly entails intrastate trips, an activity that undoubtedly affects
`interstate commerce but is not interstate commerce itself. . . . [T]he company is in the
`general business of giving people rides, not the particular business of offering interstate
`transportation to passengers. Interstate trips that occur by happenstance of geography do
`not alter the intrastate function performed by the class of workers.
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`Rogers, at 452 F. Supp. 3d at 916 (citing Hill, 398 F.3d at 1290). Nothing in Plaintiffs’ pleadings
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`suggests otherwise.
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`In arguing that the exemption applies, Plaintiffs try to frame the class of workers as “New
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`York City Uber drivers.” See, e.g., Pl. Opp. at 12. There is no basis for defining the class so
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`narrowly—in fact the majority of cases involving Uber or Lyft define the class as “Uber drivers”
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`7 Both sides are in agreement that Plaintiffs are transportation workers. See, e.g., Pls.’ Opp. at 12. Plaintiffs assert
`that the fact that Uber admits this “clearly brings Plaintiffs and the putative class within the ambit of the residual
`clause as defined in Circuit City . . . .” Pls.’ Opp. at 23. This is plainly wrong. Circuit City held that §1 exempts
`transportation workers engaged in interstate commerce, not all transportation workers.
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`or “Lyft drivers.” See, e.g., Rogers, 452 F. Supp. 3d at 916 (“Lyft drivers, as a class, are not
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`engaged in interstate commerce.”); Singh, 939 F.3d at 225 (“Uber has never framed the issue as
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`whether § 1 extends to Uber drivers specifically.”); cf. Sienkaniec, 401 F. Supp. 3d at 872
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`(requesting information regarding “the total number of Uber trips that originate in Minnesota,
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`and the number of such trips that cross state lines; and . . . the total number of Uber drivers in
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`Minnesota, and the number of such drivers who have transported a passenger across state lines,”
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`but also requesting the same information on a nationwide basis).
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`Plaintiffs also assert that they “routinely transported passengers across state lines while
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`performing services for Uber,” see Pls.’ Opp. at 14 (citing Compl. ¶¶ 25, 32, and 41), and cite to
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`their individual drivers’ ride statistics as proof that they belong to a class of workers engaged in
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`interstate commerce. See, e.g., Pls.’ Opp. 16 (“Plaintiff Aleksanian received more than 10% of
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`his income from interstate trips;” “Plaintiff Lama . . . received almost 20% of his income for the
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`eight-week period in early 2016 from interstate trips.”). However, these statistics are not
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`dispositive as the central inquiry is whether the class of workers engaged in interstate commerce.
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`Plaintiffs also argue that they belong to a class engaged in interstate commerce because
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`“a sizeable portion of their trips . . . include connecting passengers to other forms of interstate
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`transportation.” Pls.’ Opp. at 18. However, Plaintiffs’ alleged “role in connecting passengers to
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`international and interstate transportation hubs,” id., does not support a finding that Uber drivers
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`as a class engaged in interstate commerce. “It would be one thing if [Uber’s] focus were the
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`service of transporting people to and from airports . . . . But [Uber] is, in essence, a
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`technologically advanced taxicab company, allowing people to ‘hail’ rides from its drivers from
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`pretty much anywhere to pretty much anywhere.” Rogers, 452 F. Supp. 3d at 916.
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