# Uber Can't Ditch Drivers' Pricing Class Action, Judge Says



## Lewis2 (May 21, 2017)

https://www.law360.com/articles/950374/uber-can-t-ditch-drivers-pricing-class-action-judge-says
*Uber Can't Ditch Drivers' Pricing Class Action, Judge Says*
Law360, August 1, 2017

-- Uber can't shake a putative class action from drivers alleging a breach of contract stemming from its upfront pricing model, a California judge said Tuesday, finding that allegations of miscalculating driver pay are enough to move ahead at this stage of the six-month-old suit. 
Lead plaintiff Martin Dulberg claims that Uber Technologies Inc.'s pricing model pricing model charges passengers a fare before their ride even begins based on projections, but pays drivers based on the distance and time actually driven, limiting their earnings and violating terms of their employment contract.

U.S. District Judge William Alsup issued a 10-page decision on Tuesday that shot down Uber Technologies Inc.'s motion to dismiss the case following a hearing on *Thursday*. Though Judge Alsup cited some inconsistencies in Dulberg's complaint, he found that his description of Uber's allegedly misleading charging methods are sufficient enough to proceed.

"Dulberg describes this process as essentially calculating the 'Fare' twice - once upfront, using higher estimated time and distance amounts, to determine Uber's own Service Fee, and again after each ride, using lower actual time and distance amounts, to determine the amount remitted to drivers - even though the driver agreement tied both Uber's Service Fee and the driver's remittance to the same calculated Fare for each ride," Judge Alsup said. "These allegations, taken as true, suffice to state a claim for breach of contract."

Paul Malso of Napoli Shkolnik PLLC said in a statement sent to Law360 that the agreement with drivers requires Uber to use the same fare calculation to pay drivers as it uses to charge passengers. But since Uber implemented upfront pricing, it has been using one fare calculation to determine what passengers pay and a completely separate fare calculation performed after the ride to determine drivers' compensation, he said.

"Because the upfront fare calculation always yields a higher amount, drivers have been getting the short end of the stick," he said. "Today's ruling recognizes that the agreement supports drivers' claim and allows them to move forward with their case."

Dulberg's complaint, initially filed *in February*, alleges that under that upfront pricing model, in which passengers agree to a fare before accepting a ride, Uber uses an aggressive and often inflated projection of the distance and time involved in a particular ride.

The driver is entitled to a set percentage of the fare as laid out in the driver agreements, but Uber pays based on a calculation of the distance and time actually driven, Dulberg says. The actual distance can often be less than what the customer actually paid, allowing Uber to pocket the difference, according to Dulberg's complaint.

In Tuesday's decision, Judge Alsup walked through the definition of "fare" in the driver agreement and the terms of its upfront pricing policy. Uber says that its fare is calculated off of actual amounts of time and distance after a trip it done, but it doesn't have a provision that says so in its driver agreement.

Instead, the agreement says that its base fare amount plus distance and time calculation is detailed at its website, Judge Alsup said. According to that website, users attempt to get a fare estimate, they put in a pickup location and dropoff spot, Judge Alsup said.

"Thus, the website referenced in the driver agreement currently appears to facilitate a fare calculation process that closely tracks Uber's current 'upfront pricing' policy," Judge Alsup said. "This further supports the plausible inference that Uber's 'upfront pricing' policy simply explains to passengers the enumerated charges covered by the driver agreement and Uber must use the same time and distance amounts - whether estimated or actual - for both."

And though Uber offered examples of other passenger charges that aren't covered by the driver agreement, like UberPool, surge pricing, promotions and discounts, Judge Alsup said none of the examples "render implausible the amended complaint's theory that the driver agreement obligated Uber to honor the fixed, percentage-based split of the calculated Fare for each ride between its Service Fee and the driver's remittance."

Representatives for Uber didn't immediately respond to request for comment late Tuesday

Uber is represented by Jonathan R. Bass, Susan K. Jamison, Clifford E. Yin and Sean P.J. Coyle of Coblentz Patch Duffy & Bass LLP.

Dulberg is represented by Paul B. Maslo and Andrew Dressel of Napoli Shkolnik PLLC.


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## tohunt4me (Nov 23, 2015)

This is GREAT !

Hope it slows down Ubers FORCED MIDNIGHT CONTRACT CHANGES !


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## Disgusted Driver (Jan 9, 2015)

tohunt4me said:


> This is GREAT !
> 
> Hope it slows down Ubers FORCED MIDNIGHT CONTRACT CHANGES !


 It is great news and while it will take a year or two to get anywhere it probably had the exactly opposite effect. It is conceivable that the latest contract change was done specifically to legitimise the practice of up front pricing and close off any liability they might have going forward.

The sad part about this is that any awards in this case will only benefit drivers who opted out of arbitration. My understanding is that is only 2 or 3 percent of drivers in the US opted out. It would of course be interesting to see how uber might handle 1/2 million arbitration cases though.


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## SEAL Team 5 (Dec 19, 2015)

Lewis2 said:


> Uber Can't Ditch Drivers' Pricing Class Action, Judge Says
> 
> Law360, Los Angeles (August 1, 2017, 10:28 PM EDT) -- Uber can't shake a putative class action from drivers alleging a breach of contract stemming from its upfront pricing model, a California judge said Tuesday, finding that allegations of miscalculating driver pay are enough to move ahead at this stage of the six-month-old suit.
> Lead plaintiff Martin Dulberg claims that Uber Technologies Inc.'s pricing model pricing model charges passengers a fare before their ride even begins based on projections, but pays drivers based on the distance and time actually driven, limiting their earnings and violating terms of their employment contract.
> ...


How I'm interpreting this is that Uber owes mass refunds to the pax for overcharging, not to the drivers for under paying.


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## Disgusted Driver (Jan 9, 2015)

SEAL Team 5 said:


> How I'm interpreting this is that Uber owes mass refunds to the pax for overcharging, not to the drivers for under paying.


 Certainly a valid interpretation, I think it alkyl cones down to the language of the pax agreement. I think they are going to have a tougher time since they agree to the price at the time of ride. Where pax may have an entry is the suit that was filed alleging overcharging for longer routes. What would be funny is if both sides prevailed and uber had to pay on both sides.


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## SEAL Team 5 (Dec 19, 2015)

Disgusted Driver said:


> What would be funny is if both sides prevailed and uber had to pay on both sides.


I didn't even think about that. That would be like Uber getting double d*cked.


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## Jesusdrivesuber (Jan 5, 2017)

Settlement better pay me enough.

I'm just saying.


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## john2g1 (Nov 10, 2016)

What's odd is something I noticed after a concert let out.

I picked up a request and I start to drive but I was stuck in standstill traffic all around. Many Uber/Lyft pax were exiting vehicles and walking or sitting in place. I can only assume that they were worried about being charged for surge time (which would have to be 4.2X *just* to be half a dollar a min) and decided to wait the traffic out.

My pax stayed in my car because I explained upfront pricing and in the end Uber had to give me the total amount the pax was charged because we sat for just that long (and I "creatively" drove around the traffic).

It's rare but upfront pricing has helped me more than twice or even three times.

It however has bitten me once in the butt. Google (and by extension Uber) does not calculate traffic times based on "express lanes" (HOV, HOT, special toll, etc). My city (Atlanta) has a East/West interstate, a North/South, and one that circles it. 
I needed to go from the top North to the bottom South and the N/S was clogged on the northern half. Google suggested that I take the longer western semi circle, then go east, and then go south.
My pax was going to the airport so I went straight south and used the express lane. After informing my pax I got him there 15 min ahead of the predicted time he chose to exit and not even thank my skill and knowledge.
I checked the Uber app and calculated what he paid and almost to the penny it was equal to what he should have been charged if I took Google's route.
In the end Uber took a near 50% service fee and was left looking like a fool.
The pax took a 1-star for no tip and no thanks. 1 star because he told me his time (and my a/c) are the reason he doesn't take limo's anymore.

Oh? You paid half the cost of a limo on a day with no traffic, I bent the laws of physics, and provided an excellent trip and you could not tip *or* say thanks?

Ah-hem I digress... Point is up front pricing is BS but it can protect the pax from surprise charges (the old $14-$19 but somehow the fare is $23). *And* it allows driver's to beat traffic (or known police DUI checkpoints) without getting hit with a pax requested price adjustment due to "bad route chosen".

How often does Uber protect the pax *and *the driver? The answer is never outside of hiding your number and the pax's number the upfront protection is a happy accident.


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## tohunt4me (Nov 23, 2015)

Jesusdrivesuber said:


> Settlement better pay me enough.
> 
> I'm just saying.


I expect at LEAST a cheeseburger & Fries.
Been driving since 2015.
After lawyers cut i better be able to get 4 for [email protected] Rallys !


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## Uber Crack (Jul 19, 2017)

I was wondering, with up front pricing, isn't it in the drivers best interests to offer to take the Pax through a drive through, telling them it won't cost them any extra? And the driver claiming extra miles and time? Just wondering?


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## Disgusted Driver (Jan 9, 2015)

Uber Crack said:


> I was wondering, with up front pricing, isn't it in the drivers best interests to offer to take the Pax through a drive through, telling them it won't cost them any extra? And the driver claiming extra miles and time? Just wondering?


 It depends. If it's a small deviation from the course then you are correct, will boot trigger additional pax charged but how much are you making per minute? If it's a large deviation from the original route then they have the option to switch pax billing to time and mileage which is what I've seen them do in my limited experience when a stop is added or a drive through out of the way.


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## Uber Crack (Jul 19, 2017)

Disgusted Driver said:


> It depends. If it's a small deviation from the course then you are correct, will boot trigger additional pax charged but how much are you making per minute? If it's a large deviation from the original route then they have the option to switch pax billing to time and mileage which is what I've seen them do in my limited experience when a stop is added or a drive through out of the way.


I've seen it before up front pricing but not since. I'll look out for it.


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## Disgusted Driver (Jan 9, 2015)

Uber Crack said:


> I've seen it before up front pricing but not since. I'll look out for it.


Two examples I would give you:
4X surge ride, my guys wanted to stop at a convenience store and then at drive through. Since surge was ending and my last trip of the night, happy to oblige! Not deviating from the route I stopped at every convenience store closed to check and see if they were open, missing a light or so each time, then got to one open, waited while he smoked a cigarette outside and continued on our way. Stopped at drive through also on the way, you get the idea. Never went off the main street on the route. Turned a 15 minute ride into maybe 35 minutes, got $42, I think pax was charged $46 so clearly they were not charged for the extra time.

If however I pick someone up and they say, can we pick up friend 2 miles out of the way those always end up being the higher of up front or time mileage.

One thing I routinely do that doesn't trigger a fare recalculation is when I go south of my area from downtown, there is one route that takes an extra 3/4 of a mile but is the same time. Even though the GPS shows the shorter route, it lets me shift a buck from their pocket to mine.


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## Uber Crack (Jul 19, 2017)

Very interesting... thank you


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## Bulls23 (Sep 4, 2015)

Disgusted Driver said:


> It is great news and while it will take a year or two to get anywhere it probably had the exactly opposite effect. It is conceivable that the latest contract change was done specifically to legitimise the practice of up front pricing and close off any liability they might have going forward.
> 
> The sad part about this is that any awards in this case will only benefit drivers who opted out of arbitration. My understanding is that is only 2 or 3 percent of drivers in the US opted out. It would of course be interesting to see how uber might handle 1/2 million arbitration cases though.


I'm one of those opted out. I don't expect much if settled. However, I hope the main outcome will force Uber to stop this practice by taking 20% or 25% only from whatever they choose to charge riders. Just like they were forced to let drivers solicit for tips and abandoned deactivation policy for low acceptance after tipping case settlement.


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## heynow321 (Sep 3, 2015)

john2g1 said:


> It's rare but upfront pricing has helped me more than twice or even three times.
> 
> It however has bitten me once in the butt. Google (and by extension Uber) does not calculate traffic times based on "express lanes" (HOV, HOT, special toll, etc). My city (Atlanta) has a East/West interstate, a North/South, and one that circles it.
> .


it's screwed you way more than it's helped you. they're taking 50% of the fare or more on short rides, which as I'm sure their data shows, are the majority of rides.


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## Rat (Mar 6, 2016)

Disgusted Driver said:


> Certainly a valid interpretation, I think it alkyl cones down to the language of the pax agreement. I think they are going to have a tougher time since they agree to the price at the time of ride. Where pax may have an entry is the suit that was filed alleging overcharging for longer routes. What would be funny is if both sides prevailed and uber had to pay on both sides.


There is a possibility of punitive damages as well



Uber Crack said:


> I was wondering, with up front pricing, isn't it in the drivers best interests to offer to take the Pax through a drive through, telling them it won't cost them any extra? And the driver claiming extra miles and time? Just wondering?


Sitting still in a drive through isn't getting any extra miles. $4.80/hr isn't worth waiting


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## TheSnoozer (Sep 6, 2017)

Rat said:


> There is a possibility of punitive damages as well
> 
> Sitting still in a drive through isn't getting any extra miles. $4.80/hr isn't worth waiting


I smell a rat!


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## Rat (Mar 6, 2016)

TheSnoozer said:


> I smell a rat!


Get your nose out of my butthole!


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## TheSnoozer (Sep 6, 2017)

Rat said:


> Get your nose out of my butthole!


That's not a very 'rat like" thing to say.


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## Rat (Mar 6, 2016)

TheSnoozer said:


> That's not a very 'rat like" thing to say.


Define "rat like". Us Rats don't have a code of conduct


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## TheSnoozer (Sep 6, 2017)

Rat said:


> Define "rat like". Us Rats don't have a code of conduct


The "Rat" has struck again!


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## Michael - Cleveland (Jan 1, 2015)

Lewis2 said:


> Uber Can't Ditch Drivers' Pricing Class Action, Judge Says
> 
> Law360, Los Angeles (August 1, 2017, 10:28 PM EDT) -- Uber can't shake a putative class action from drivers alleging a breach of contract stemming from its upfront pricing model, a California judge said Tuesday, finding that allegations of miscalculating driver pay are enough to move ahead at this stage of the six-month-old suit.
> Lead plaintiff Martin Dulberg claims that Uber Technologies Inc.'s pricing model pricing model charges passengers a fare before their ride even begins based on projections, but pays drivers based on the distance and time actually driven, limiting their earnings and violating terms of their employment contract.
> ...


Thank you very much for posting the story. It's greatly appreciated. Please, when posting in the news section, always post a link to the original story, if possible. It helps maintain the Integrity of the section.


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## Lewis2 (May 21, 2017)

Michael - Cleveland said:


> Thank you very much for posting the story. It's greatly appreciated. Please, when posting in the news section, always post a link to the original story, if possible. It helps maintain the Integrity of the section.


It was my first post so can't include link.

Here is the link.

https://www.law360.com/articles/950374/uber-can-t-ditch-drivers-pricing-class-action-judge-says


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## tohunt4me (Nov 23, 2015)

TheSnoozer said:


> I smell a rat!


So does the Judge !

" Here Comes the Judge "! - Pigmeat Markham


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## Michael - Cleveland (Jan 1, 2015)

Lewis2 said:


> It was my first post so can't include link.


I should have seen that - sorry!
And THANK YOU again for posting - and for providing the link... and WELCOME ABOARD


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## Oscar Levant (Aug 15, 2014)

Lewis2 said:


> https://www.law360.com/articles/950374/uber-can-t-ditch-drivers-pricing-class-action-judge-says
> *Uber Can't Ditch Drivers' Pricing Class Action, Judge Says*
> Law360, August 1, 2017
> 
> ...


What is needed is to do away with Uber app, and go with meters, and just be taxis, because at least with a meter, everything is on the up and up.



Bulls23 said:


> I'm one of those opted out. I don't expect much if settled. However, I hope the main outcome will force Uber to stop this practice by taking 20% or 25% only from whatever they choose to charge riders. Just like they were forced to let drivers solicit for tips and abandoned deactivation policy for low acceptance after tipping case settlement.


You can opt out even if you intitially opted in, Atty Shannon Liss-Riordin told me . there might have been a window i forget.


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## bossdriver (Apr 25, 2016)

My Interpretation: You can't overcharge a passenger when the pax agreed to the upfront pricing BEFORE the ride! YOU CAN under pay the driver by pocketing the difference between the time and distance of the actual ride. If you understand legalease, Uber changed the pricing model on the drivers and will have to pay the difference BACK to the drivers. Uber can't calculate the fare twice and only pay drivers based on the lowest fare. Riders (pax) are NOT entitled to a refund. Drivers are. This case is simple.


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## JDoey (Mar 6, 2017)

So how do we all get paid from this suit when it settles


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## Disgusted Driver (Jan 9, 2015)

bossdriver This case has nothing to do with pax getting over charged, it was filed by a driver for drivers and you are correct, it's essentially over what"fare" means in the previous driver agreement. Passengers have recently filed a separate suit alleging overcharging claiming that uber is deliberately using longer routes to calculate price.

JDoey Did you opt out of binding arbitration? If so, I'm sure you'll be notified at some point and given the chance to join, I'm sure it will be a couple of years before anything happens. If you didn't opt out them i would guess once this suit is concluded you would have to file an arbitration claim.

Oscar Levant I think the second chance period to opt out was back in late 2015 or early 2016 when we did a new contract. I don't think we had that option this past may.


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