A federal judge in San Francisco recently certified a limited class in a lawsuit against Uber under the California Unfair Competition Law (UCL) and the California Consumers Legal Remedies Act (CLRA). The plaintiff sought to certify a class of all Uber customers who used a traditional taxi from April 2012 to March 2013. However, after examining the claims under Rule 23 and both the UCL and CLRA, the court certified a class consisting of only those customers who received an allegedly misleading email from Uber and then took a traditional taxi ride through the Uber service.

Uber provides a software solution that connects riders with transportation providers via a smartphone app that allows riders to “summon, arrange, and pay for” their rides all in one place.  Although in most cities Uber uses private drivers with normal automobiles, from April 2012 to March 2013, Uber had an option in five cities that allowed riders to select a traditional taxi.  Through an email blast, their website, and a blog, Uber represented that the fee would be the metered charge plus a 20 percent “gratuity.” In reality, about 12 percent of this surcharge went to Uber, and the remainder to the driver.

In examining class certification issuesthe court spent most of its time considering the typicality and predominance factors. Under the UCL, “it is necessary only to show that members of the public are likely to be deceived.” In contrast, the CLRA requires “at a minimum, that the class be exposed to the allegedly false advertising at issue.” Given the three different channels of media used to advertise the allegedly false statement, the court had to determine whether class-wide exposure to the misrepresentations could be inferred. Plaintiffs did not allege that any misrepresentation existed in the Uber app itself.

To make this determination, the court examined a variety of factors, including the extensiveness of the advertising, the prominence of the alleged misrepresentation, and the amount of other information provided in the advertisement. The court found no evidence that it was “highly likely” that all members of the proposed class saw the blog and website such that class-wide knowledge could be inferred.

However, because the email was so specific and so targeted in promoting the taxi service, the court found that it was highly likely to have seen, and been exposed to, the alleged misrepresentation there. Even though the websites and blogs were not enough to establish class-wide knowledge under the UCL and the CLRA standing alone, the court did find that they enhanced the potential exposure of the email advertisement.

Ehret v. Uber Technologies, Inc., No. 14-cv-00113-EMC (N.D. Cal. Dec. 2, 2015).