before the united states judicial panel on … · cordas v. uber techs., inc., ... case mdl no....

BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

MDL No. 2826

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TRANSFER AND CENTRALIZATION PURSUANT TO 28 U.S.C. § 1407

IN RE: UBER TECHNOLOGIES, INC., DATA SECURITY BREACH LITIGATION

Case MDL No. 2826 Document 29 Filed 01/17/18 of 25

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TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................................. 1

II. BACKGROUND .................................................................................................................... 3

III. ARGUMENT ......................................................................................................................... 4

A. Centralization Is Not Appropriate Given the Likelihood of Arbitration and Early Resolution.......................................................................................................5

B. Centralization Cannot Resolve All Issues and Is an Incomplete Fix .......................8

C. Even If the Cases Proceed In Federal Court, Individualized Issues Predominate Over Common Questions of Fact. ......................................................9

D. Centralization Will Not Serve the Convenience of the Parties and the Courts. ....................................................................................................................13

E. Counsel for the Parties Can Coordinate Informally If Needed. .............................14

F. If the Panel Grants MDL Status, the Central District of California Is Better Suited to Serve as the Transferee Court than the Northern District of California. ..............................................................................................................15

IV. CONCLUSION .................................................................................................................... 19


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TABLE OF AUTHORITIES

Page(s)

Cases

In re: 5-Hour Energy Mktg. & Sales Practices Litig., 949 F. Supp. 2d 1357 (J.P.M.L. 2013) .....................................................................................17

In re: Adderall X (Amphetamine/Dextroamphetamine) Marking, Sales Practices and Antitrust Litig., 968 F. Supp. 2d 1343 (J.P.M.L. 2013) .....................................................................................14

In re: ArrivalStar S.A. Fleet Mgmt. Sys. Patent Litig., 802 F. Supp. 2d 1378 (J.P.M.L. 2011) .......................................................................................7

AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) ...................................................................................................................8

In re: Avaulta Pelvic Support Sys. Prod. Liab. Litig., 746 F. Supp. 2d 1362 (J.P.M.L. 2010) .....................................................................................16

In re: Best Buy Co., Inc., California Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376 (J.P.M.L. 2011) .................................................................................5, 14

Bruster v. Uber Techs., Inc., No. 15-CV-2653, 2016 WL 2962403 (N.D. Ohio May 23, 2016), recons. denied, 2016 WL 4086786 (N.D. Ohio Aug. 2, 2016) ..............................................................6

Congdon v. Uber Techs., Inc., No. 16-cv-02499-YGR, 2016 WL 7157854 (N.D. Cal. Dec. 8, 2016) ......................................6

In re Copper Antitrust Litig., 269 F. Supp. 2d 1365 (J.P.M.L. 2003) .......................................................................................7

Cordas v. Uber Techs., Inc., 228 F. Supp. 3d 985, 992 (N.D. Cal. 2017) ...............................................................................6

In re Corn Derivatives Antitrust Litig., 486 F. Supp. 929 (J.P.M.L. 1980) ............................................................................................17

In re: Countrywide Fin. Corp. Mortg.-Backed Sec. Litig., 812 F. Supp. 2d 1380 (J.P.M.L. 2011) .....................................................................................18

Cullinane v. Uber Techs., Inc. No. 14-14750-DPW, 2016 WL 3751652 (D. Mass. July 11, 2016), appeal docketed, No. 16-2023 (1st Cir. Aug. 16, 2016) ........................................................................6


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Dunlavey v. Takeda Pharm. Am., Inc., No. 6:12-CV-1162, 2012 WL 3715456 (W.D. La. Aug. 23, 2012) .........................................16

In re Eli Lilly & Co. (Cephalexin Monohydrate) Patent Litig., 446 F. Supp. 242 (J.P.M.L. 1978) ........................................................................................5, 15

In re Epogen & Aranesp Off-Label Mktg. & Sales Practices Litig., 545 F. Supp. 2d 1365 (J.P.M.L. 2008) .....................................................................................17

In re Express Scripts Holding Co. Sec., Derivative & Employee Ret. Income Sec. Act (ERISA) Litig., MDL No. 2769, 2017 WL 1283669 (J.P.M.L. Apr. 5, 2017) ....................................................9

In re: Florida Dep’t of Corr. Sexual Harassment by Inmates Litig., 657 F.Supp. 2d 1369 (J.P.M.L. 2009) ......................................................................................11

In re: Fout & Wuerdeman Litig., 657 F. Supp. 2d 1371 (J.P.M.L. 2009) .......................................................................................5

In re: Gerber Probiotic Prod. Mktg. & Sales Practices Litig., 899 F. Supp. 2d 1378 (J.P.M.L. 2012) .................................................................................7, 15

In re Kohl’s Tel. Consumer Prot. Act (TCPA) Litig., 220 F. Supp. 3d 1363, 1365 (J.P.M.L. 2016) .......................................................................6, 10

KPMG LLP v. Cocchi, 565 U.S. 18 (2011) (per curiam) ................................................................................................8

Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (2011) ..............................................................................................................10

Lainer v. Uber Techs., Inc., No. 2:15-cv-09925-BRO-MRW (C.D. Cal. May 11, 2016) ......................................................6

Lee v. Uber Techs., Inc., No. 15-C-11756, 2016 WL 5417215 (N.D. Ill. Sept. 21, 2016) ................................................6

Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017)...................................................................................................6, 10

Micheletti v. Uber Techs., Inc., No. 15-1001, 2016 WL 5793799 (W.D. Tex. Oct. 3, 2016) ......................................................6

Mohamed v. Uber Techs., Inc., 848 F.3d 1201 (9th Cir. 2016) .............................................................................................6, 10

In re Oil Spill by “Amoco Cadiz” Off Coast of France on Mar. 16, 1978, 471 F. Supp. 473 (J.P.M.L. 1979) ............................................................................................16


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In re: Pharmacy Ben. Plan Administrators Pricing Litig., 206 F. Supp. 2d 1362 (J.P.M.L. 2002) .......................................................................................9

In re: Pub. Records Collection Fair Credit Reporting Act (FCRA) Litig., 641 F. Supp. 2d 1382-83 (J.P.M.L. 2009) .................................................................................4

Rimel v. Uber Techs., Inc., No. 6:15-cv-2191-Orl-41KRS, 2016 WL 6246812 (M.D. Fla. Aug. 4, 2016) ..........................6

In re Rite Aid Corp. Wage & Hour Employment Practices Litig., 655 F. Supp. 2d 1376 (J.P.M.L. 2009) .....................................................................................11

Sena v. Uber Techs. Inc., No. CV-15-02418-PHX-DLR, 2016 WL 1376445 (D. Ariz. Apr. 7, 2016), recons. denied, 2016 WL 4064584 (D. Ariz. May 03, 2016) ....................................................6

Stollenwerk v. TriWest Healthcare Alliance, No. 03-cv-0185-PHX-SRB (D. Ariz. 2008) ............................................................................11

In re: Structured Tr. Advantaged Repackaged Sec. (Stars) Trans. Litig., 729 F. Supp. 2d 1357 (J.P.M.L. 2010) .......................................................................................8

Suarez v. Uber Techs., Inc., No. 8:16-cv-166-T-30MAP, 2016 WL 2348706 (M.D. Fla. May 4, 2016) ..............................6

In re: Target Corp. Customer Data Sec. Breach Litig., 11 F. Supp. 3d 1338, 1339 (J.P.M.L. 2014) .............................................................................18

In re: Transocean Ltd. Sec. Litig. (No. II), 753 F. Supp. 2d 1373 (J.P.M.L. 2010) .......................................................................................5

In re Uber Techs., Inc., Wage & Hour Employment Practices, 158 F. Supp. 3d 1372 (J.P.M.L. 2016) .....................................................................................11

Varon v. Uber Techs., Inc., No. MJG-15-3650, 2016 WL 1752835 (D. Md. May 3, 2016), recons. denied, 2016 WL 3917213 (D. Md. July 20, 2016)................................................................................6

In re: WellPoint, Inc., Out-of-Network UCR Rates Litig., 652 F. Supp. 2d 1375 (J.P.M.L. 2009) .....................................................................................17

In re Yellow Brass Plumbing Component Prods. Liab. Litig., 844 F. Supp. 2d 1377 (J.P.M.L. 2012) .......................................................................................6

Zawada v. Uber Techs., Inc., No. 16-cv-11334, 2016 WL 7439198 (E.D. Mich. Dec. 27, 2016) ...........................................6


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Statutes

28 U.S.C. § 1407 .................................................................................................................... passim

28 U.S.C. § 1407(a) .....................................................................................................................1, 4

Cal. Civ. Code § 1798.81.5 ............................................................................................................10

Other Authorities

15 Charles Alan Wright & Arthur R. Miller, Federal Practice & Proc. § 3863 (4th ed. 2016) ...........................................................................................................................13

Federal Judicial Center, Manual for Complex Litigation § 20.14 (4th ed.) .....................................5

Federal Judicial Center, Manual for Complex Litigation § 20.131 (4th ed.) .................................16

Los Angeles Magazine (May 1, 2011), available at http://www.lamag.com/askchris/how-many-flights-come-in-and-out-of-lax-every1/......................................................................................................................................18

Statistics Report – Distribution of Pending MDL Dockets by District (Jan. 16, 2018), available at http://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-January-16-2018.pdf .......................................................................................................17

U.S. Courts, Federal Court Management Statistics—Profiles, U.S. District Courts (Sept. 2017), available at http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0930.2017.pdf ..............................................................................................................................18


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Defendants Uber Technologies, Inc. and three subsidiaries, as well as several of its

current and former employees (collectively, “Uber”), submit this memorandum in opposition to

the Motion for Transfer and Centralization Pursuant to 28 U.S.C. § 1407 (“MDL Motion”) filed

by Plaintiffs Steven Agans and Audrey Diaz Sanchez (collectively, the “Plaintiffs”) on

December 26, 2017. Uber respectfully requests that the Panel deny the MDL Motion.

I. INTRODUCTION

Plaintiffs’ MDL Motion seeks to centralize twelve actions pending in five district courts,

which assert various claims arising out of a 2016 data security incident at Uber. Unlike other

data breach cases that the Panel has considered, the claims in the underlying cases at issue here

will be resolved by arbitrations pursuant to binding arbitration provisions that have been

enforced repeatedly in courts across the country. Imposing the MDL process on these actions is

inefficient, and would needlessly waste judicial resources by creating an MDL for matters that

ultimately will be decided by arbitrators, not the federal courts.

The Judicial Panel on Multidistrict Litigation (“Panel”) is only empowered to transfer and

centralize cases when the moving party demonstrates transfer “will be for the convenience of the

parties and witnesses and will promote the just and efficient conduct of [the] actions” and when

sufficiently complex and numerous “common questions of fact” are raised by the underlying

cases. 28 U.S.C. § 1407(a). In this case, Plaintiffs have failed to satisfy the criteria for § 1407

transfer for several reasons.

Most importantly, the overwhelming likelihood that these cases will be arbitrated

militates strongly against transfer and centralization. The individualized facts surrounding the

formation of these arbitration agreements—including the circumstances of how a given plaintiff

consented to the terms—vary, making it difficult for a single judge to efficiently address


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arguments about the enforceability of the agreements of the more than 50 plaintiffs currently

suing Uber. Critically, these arbitration agreements—which were drafted following guidance

from the United States Supreme Court regarding the enforceability of such agreements—require

that these claims be adjudicated in the county and/or within 45 miles of the plaintiff’s residence,

and that promise would be undermined if the Panel centralizes these actions. And because the

Panel cannot transfer and centralize four cases regarding the data security incident that will

remain in state court, centralization amounts to an incomplete and ineffective fix here.

Moreover, substantive and procedural differences pervade these actions. Individualized

issues regarding whether each plaintiff was actually impacted by the data security incident,

whether there are alternative causation explanations for any alleged harm they suffered (e.g., an

individual inquiry as to each plaintiff regarding whether he or she was the victim of another data

breach), and what damages they purportedly suffered far outweigh the two purported common

questions of fact that Plaintiffs identified in the MDL Motion. Further, centralization would not

serve the convenience of Uber, which would prefer to avoid the delay inherent in an MDL

raising so many individualized issues, or the various plaintiffs who have chosen to file the

underlying cases in their home districts. Finally, even if these cases were to remain in federal

court—and they should not—there are alternatives to MDL treatment readily available, as Uber

would coordinate informally with the plaintiffs’ counsel to avoid duplicative discovery or motion

practice.

At bottom, centralization would not promote judicial efficiency or serve the convenience

of the parties and the courts.


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II. BACKGROUND

The MDL Motion seeks to transfer 12 actions pending in five district courts: four in the

Northern District of Illinois; four in the Northern District of California; two in the Central

District of California; one in the Eastern District of Pennsylvania; and one in the Northern

District of Alabama. See Schedule of Actions (J.P.M.L. Dkt. No. 1-2). In addition to the actions

included in the MDL Motion by Plaintiffs, Uber recently noticed as potentially related cases

several federal actions that also stem from the same data security incident as is the subject of the

MDL Motion, two of which were recently removed from state court. See Chadha et al. v. Uber

Technologies, Inc., No. 2:18-cv-00263 (C.D. Cal.); Leffler v. Uber Technologies, Inc. et al., No.

3:18-cv-00013 (W.D. Wis.); Nicolai v. Uber Technologies, Inc. et al., No. 3:17-cv-03475

(D.S.C.); Seifian v. Uber Technologies, Inc., No. 3:17-cv-01879 (D. Or.).1 Uber believes the 15

active cases filed in or removed to federal courts in seven districts to be subject to the MDL

Motion.

Importantly, other actions related to the incident cannot be removed and will remain in

state court, including a class action filed on behalf a class of California drivers in which Uber

will move to compel arbitration, Togafau v. Uber Technologies, Inc., No. BC686155 (Cal. Super.

Ct. Los Angeles Cnty., filed Dec. 8, 2017), and three lawsuits commenced by government

entities, see City of Chicago v. Uber Technologies, Inc., No. 2017-CH-15594 (Cir. Ct. Cook

Cnty., filed Nov. 27, 2017); People of the State of California v. Uber Technologies, Inc., No.

CGC14543120 (Cal. Super. Ct. Los Angeles Cnty., filed Dec. 4, 2017); State of Washington v.

Uber Technologies, Inc. (Super. Ct. King Cnty., filed Nov. 28, 2017).

1 Although 16 cases have been noticed to the Panel, one has since been dismissed with prejudice. Seifian, No. 3:17-cv-01879, Dkt. No. 15; J.P.M.L. Dkt. No. 28 (alerting the Panel to the dismissal of this action). Accordingly, the argument focuses on the 15 active cases pending in federal courts around the country.


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The pending federal actions are in different procedural postures and on disparate

trajectories. Indeed, Uber has yet to be served in four cases, DeSignor v. Uber Technologies,

Inc. et al., No. 5:17-cv-05289 (E.D. Pa.); Grice v. Uber Technologies, Inc., No. 5:17-cv-01975

(N.D. Ala.); Heller et al. v. Rasier, LLC et al., No. 2:17-cv-08545 (C.D. Cal.); Leffler, No. 3:18-

cv-00013, and another putative class action has already been dismissed with prejudice, Seifian,

No. 3:17-cv-01879, Dkt. No. 15. In all of the remaining class actions Uber will have filed

motions to compel arbitration and stay the proceedings pursuant to the Federal Arbitration Act

(“FAA”) by the time the Panel hears argument on this matter.

III. ARGUMENT

Plaintiffs have failed to meet their heavy burden under 28 U.S.C. § 1407(a) to establish

that transfer and centralization are appropriate. The governing arbitration agreements make the

actions capable of efficient resolution through other available procedures. And even if these

cases were not subject to arbitration, numerous individualized factual and legal issues would

hamper an MDL proceeding, undermining the efficiency of litigating any common factual

questions as a consolidated action. Finally, centralization provides only an incomplete fix, as at

least four (of 19) cases pending in the wake of the incident will proceed in state courts.

Pursuant to 28 U.S.C. § 1407(a), the Panel may transfer and centralize actions if it

determines that: (1) “one or more common questions of fact are pending in different districts”;

(2) transfer is necessary to serve “the convenience of the parties and witnesses”; and (3) transfer

“will promote the just and efficient conduct of such actions.” See In re: Pub. Records Collection

Fair Credit Reporting Act (FCRA) Litig., 641 F. Supp. 2d 1382, 1382-83 (J.P.M.L. 2009)

(“While the actions may share some threshold questions of law . . . , movants have failed to

convince us that any common factual questions are sufficiently complex and/or numerous to


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justify Section 1407 transfer at this time.”). The moving party carries the burden to demonstrate

that transfer and centralization are warranted. See In re: Fout & Wuerdeman Litig., 657 F. Supp.

2d 1371, 1371 (J.P.M.L. 2009) (“[T]he proponents of centralization have not convinced us that

those questions are sufficiently complex and/or numerous to justify Section 1407 transfer at this

time.”). Indeed, “where only a minimal number of actions are involved, the moving party

generally bears a heavier burden of demonstrating the need for centralization.” In re:

Transocean Ltd. Sec. Litig. (No. II), 753 F. Supp. 2d 1373, 1374 (J.P.M.L. 2010).

Further, where there are suitable alternatives to § 1407 that would also serve to minimize

duplicative discovery, those alternatives should be taken. In re Eli Lilly & Co. (Cephalexin

Monohydrate) Patent Litig., 446 F. Supp. 242, 244 (J.P.M.L. 1978); In re: Best Buy Co., Inc.,

California Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011)

(“[C]entralization under Section 1407 should be the last solution after considered review of all

other options.”); see also Federal Judicial Center, Manual for Complex Litigation § 20.14 (4th

ed.).

A. Centralization Is Not Appropriate Given the Likelihood of Arbitration and Early Resolution.

In the currently pending actions before the Panel, Uber intends to move to compel

arbitration seeking the enforcement of broad and straightforward arbitration agreements that

have been upheld by courts nationwide. Critically, Uber will advance the argument in each

pending action that nearly every one of the various plaintiffs agreed to resolve all of their claims

against Uber though individual arbitration and that such claims cannot proceed in federal court at

all—much less an MDL. See, e.g., March 23, 2017 and December 13, 2017 U.S. Terms of Use

(Exs. A & B) at passim; December 11, 2015 Technology Services Agreement (Ex. C) at passim.

Courts around the country have repeatedly enforced identical or similar arbitration agreements


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between Uber and both drivers and riders. See, e.g., Meyer v. Uber Techs., Inc., 868 F.3d 66, 80

(2d Cir. 2017) (enforcing Uber’s “rider” arbitration clause); Mohamed v. Uber Techs., Inc., 848

F.3d 1201, 1216 (9th Cir. 2016) (enforcing Uber’s arbitration clause for drivers); Cordas v. Uber

Techs., Inc., 228 F. Supp. 3d 985, 992 (N.D. Cal. 2017) (enforcing Uber’s arbitration provision

as to riders); Varon v. Uber Techs., Inc., No. MJG-15-3650, 2016 WL 1752835, at *6 (D. Md.

May 3, 2016), recons. denied, 2016 WL 3917213 (D. Md. July 20, 2016) (granting Uber’s

motion to compel individual arbitration of drivers’ claims and dismissing class allegations).2

Accordingly, Uber expects the plaintiffs will be compelled to arbitrate claims on an individual

basis while their respective federal lawsuits are stayed. When these motions are granted, there

simply will be no claims to litigate in federal court. See In re Yellow Brass Plumbing

Component Prods. Liab. Litig., 844 F. Supp. 2d 1377, 1379 (J.P.M.L. 2012) (denying

centralization because, in part, “one of the actions is being arbitrated and others could proceed to

arbitration”).

In light of Uber’s decision to move to compel arbitration in the underlying actions and

the significant authority upholding Uber’s arbitration provision, “the record indicates that many

of these cases may be susceptible to fairly quick resolution.” In re Kohl’s Tel. Consumer Prot.

Act (TCPA) Litig., 220 F. Supp. 3d 1363, 1365 (J.P.M.L. 2016). As courts resolve Uber’s 2 See also Zawada v. Uber Techs., Inc., No. 16-cv-11334, 2016 WL 7439198 (E.D. Mich. Dec. 27, 2016); Congdon v. Uber Techs., Inc., No. 16-cv-02499-YGR, 2016 WL 7157854 (N.D. Cal. Dec. 8, 2016); Micheletti v. Uber Techs., Inc., No. 15-1001, 2016 WL 5793799 (W.D. Tex. Oct. 3, 2016); Lee v. Uber Techs., Inc., No. 15-C-11756, 2016 WL 5417215 (N.D. Ill. Sept. 21, 2016); Bruster v. Uber Techs., Inc., No. 15-CV-2653, 2016 WL 2962403 (N.D. Ohio May 23, 2016), recons. denied, 2016 WL 4086786 (N.D. Ohio Aug. 2, 2016); Suarez v. Uber Techs., Inc., No. 8:16-cv-166-T-30MAP, 2016 WL 2348706 (M.D. Fla. May 4, 2016); Sena v. Uber Techs. Inc., No. CV-15-02418-PHX-DLR, 2016 WL 1376445 (D. Ariz. Apr. 7, 2016), recons. denied, 2016 WL 4064584 (D. Ariz. May 03, 2016); Rimel v. Uber Techs., Inc., No. 6:15-cv-2191-Orl-41KRS, 2016 WL 6246812 (M.D. Fla. Aug. 4, 2016); Lainer v. Uber Techs., Inc., No. 2:15-cv-09925-BRO-MRW (C.D. Cal. May 11, 2016); Cullinane v. Uber Techs., Inc. No. 14-14750-DPW, 2016 WL 3751652 (D. Mass. July 11, 2016), appeal docketed, No. 16-2023 (1st Cir. Aug. 16, 2016).


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motions to compel arbitration, favorable rulings will send these claims to arbitration and lead to

early resolution of the federal court proceedings, thereby eliminating the multidistrict character

of the litigation. The Panel routinely defers to the district courts—rather than granting MDL

status—when a “reasonable prospect exists” that the district courts can resolve the multidistrict

character of the litigation. See, e.g., In re: Gerber Probiotic Prod. Mktg. & Sales Practices

Litig., 899 F. Supp. 2d 1378, 1379 (J.P.M.L. 2012); In re Copper Antitrust Litig., 269 F. Supp.

2d 1365 (J.P.M.L. 2003) (explaining that the Panel deferred decision on the § 1407(c)

centralization motion in light of a pending motion to dismiss, and then denying as moot the

transfer motion upon dismissal of the underlying action). Further, one action noticed to the

Panel has already since been resolved and dismissed with prejudice in its respective district. See

Seifian, No. 3:17-cv-01879, Dkt. No. 15. Taking into account the likelihood that individual

arbitration will be compelled in pending actions across the country, and given that one matter has

already been voluntarily dismissed with prejudice, “the advantages centralization typically

affords—i.e., reducing duplicative discovery and motion practice, etc.—may not be relevant”

here. In re: ArrivalStar S.A. Fleet Mgmt. Sys. Patent Litig., 802 F. Supp. 2d 1378, 1379

(J.P.M.L. 2011). Accordingly, the MDL Motion should be denied.

Centralization would also undermine the unique terms of Uber’s governing arbitration

agreements, which require local arbitration of the instant disputes for the convenience of

consumers. Here, the various plaintiffs’ agreements with Uber clearly establish a local arbitral

forum. See, e.g., Ex. A, at 3 (“Unless you and Uber otherwise agree, the arbitration will be

conducted in the county where you reside.”); Ex. C § 15.3(iii) (“The location of the arbitration

proceeding shall be no more than 45 miles from the place where you last provided transportation

services under this Agreement, unless each party to the arbitration agrees in writing otherwise.”).


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Indeed, the arbitration agreement at issue in AT&T Mobility LLC v. Concepcion was upheld, in

part, because it similarly specified “that arbitration must take place in the county in which the

customer is billed,” thus benefiting the plaintiffs. 563 U.S. 333, 337 (2011). Centralizing the

pending actions against Uber in one district court directly contradicts the express contractual

provision that the parties will resolve disputes locally—a term explicitly articulated in the

agreements the plaintiffs entered into with Uber. The Panel should deny the MDL Motion and,

consistent with the FAA, “ensure the enforcement of arbitration agreements according to their

terms so as to facilitate streamlined proceedings.” Id. at 344; see e.g., KPMG LLP v. Cocchi,

565 U.S. 18, 21 (2011) (per curiam) (reiterating well-established federal policy favoring

arbitration and ensuring that arbitration agreements are rigorously enforced nationwide).

B. Centralization Cannot Resolve All Issues and Is an Incomplete Fix

The Panel has recognized that when there are a substantial number of state court

proceedings arising out of the same facts as the federal proceedings in question, centralization is

inappropriate because it “would work only an incomplete fix, in that it would not gather all

litigation concerning the [common questions of fact] before a single court.” In re: Structured Tr.

Advantaged Repackaged Sec. (Stars) Trans. Litig., 729 F. Supp. 2d 1357, 1357 (J.P.M.L. 2010)

(denying transfer).

Here, even if the federal actions were not subject to arbitration, there are at least four

cases arising from the Uber data security incident that are currently pending in state courts and

unlikely to be removed. See City of Chicago v. Uber Technologies, Inc., No. 2017-CH-15594

(Cir. Ct. Cook Cnty.); People of the State of California v. Uber Technologies, Inc., No.

CGC14543120 (Cal. Super. Ct. Los Angeles Cnty.); State of Washington v. Uber Technologies,

Inc. (Super. Ct. King Cnty.); Togafau v. Uber Technologies, Inc., No. BC686155 (Cal. Super. Ct.


9

Los Angeles Cnty.). Thus, even if the actions before the Panel are centralized, approximately

20% of the actions arising out of Uber’s data-security incident will remain in separate

proceedings, which Uber will already be working to coordinate informally. Particularly in light

of the inefficiencies of centralization in this litigation, the Panel should decline to impose the

“incomplete fix” of MDL treatment in federal court.

C. Even If the Cases Proceed In Federal Court, Individualized Issues Predominate Over Common Questions of Fact.

The purported common questions of fact that Plaintiffs identify are not sufficiently

numerous and complex to warrant centralization. The Panel has denied transfer where common

questions of fact are outweighed by individualized factual and legal issues, recognizing that the

purpose of the MDL model is to create efficiencies. See, e.g., In re: Pharmacy Ben. Plan

Administrators Pricing Litig., 206 F. Supp. 2d 1362, 1363 (J.P.M.L. 2002) (denying transfer

where “unique questions of fact predominate over any common issues of fact”); In re Express

Scripts Holding Co. Sec., Derivative & Employee Ret. Income Sec. Act (ERISA) Litig., MDL No.

2769, 2017 WL 1283669, at *1 (J.P.M.L. Apr. 5, 2017) (denying transfer despite certain

“common factual allegations,” because “case-specific issues are likely to undermine the alleged

efficiencies”). Here, the common factual questions that Plaintiffs assert essentially boil down to

two issues: (1) whether Uber failed to adequately safeguard the personal information of

plaintiffs and putative class members; and (2) whether Uber timely notified individuals that their

information had been compromised. See Pls.’ Mem. in Support of MDL Mot. (J.P.M.L. Dkt. No.

1-1) (“Pls.’ Mem.”) at 1-2, 3-4. The efficiency gained by litigating these two allegedly common

factual issues in one pre-trial proceeding will be outweighed by the morass of case-specific

factual and legal issues that would bog down an MDL court.


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First, there are numerous individualized factual issues that the MDL court would have to

resolve, which cuts against centralization. See In re Kohl’s, 220 F. Supp. 3d at 1364 (denying

centralization despite common factual issues where individualized discovery was “likely to be

quite significant”). For example, to determine as a threshold matter whether the parties agreed to

arbitrate the plaintiffs’ claims and to evaluate Uber’s alleged breach of contract, the court would

have to analyze the circumstances of each plaintiff’s consent to Uber’s terms and conditions or

services agreements, which vary depending on the date and means of registration. For example,

drivers and riders have different, although similarly broad, arbitration agreements, and certain

drivers agreed to different terms than others. See Meyer, 868 F.3d at 80 (finding that the rider

assented to arbitration after analyzing the process by which he registered and agreed to Uber’s

terms of service); Mohammed, 848 F.3d at 1206-07 (noting differences in the 2013 and 2014

agreements accepted by drivers). In addition, and if the federal actions were not subjected to

arbitration, the court would have to assess whether each plaintiff was actually impacted by the

Uber data-security incident and, if so, what personal information was compromised. Both issues

are essential for determining Plaintiffs’ standing and Uber’s liability under a variety of claims.

See, e.g., Cal. Civ. Code § 1798.81.5 (loss of full names and email addresses, without more, is

not actionable under California data-breach statute); Kwikset Corp. v. Superior Court, 51 Cal.4th

310, 326 (2011) (standing under California’s Unfair Competition Law requires proof of actual

economic injury for each Plaintiff asserting a claim). Complicating matters further, the court

would also have to delve into potential alternative causes of the plaintiffs’ alleged injuries,

particularly given the limited data elements impacted in this matter, including whether each

plaintiff was exposed to prior data breaches; whether each plaintiff had personal information

available to identity thieves on the Deep or Dark Web prior to the Uber data security incident;


11

and whether each plaintiff had experienced identity theft before the Uber data security incident.

See, e.g., Stollenwerk v. TriWest Healthcare Alliance, No. 03-cv-0185-PHX-SRB, ECF No. 139,

at 7 (D. Ariz. 2008) (causation inquiry in data breach cases “will depend on individual factual

circumstances”). And even if after all that the plaintiffs could establish Uber’s liability, the court

would have to resolve individualized questions of the type and amount of damages (if any) each

plaintiff suffered. See In re: Florida Dep’t of Corr. Sexual Harassment by Inmates Litig., 657

F.Supp. 2d 1369, 1370 (J.P.M.L. 2009) (denying transfer when “resolution of plaintiffs’ claims is

likely to turn on highly individualized inquiries regarding, inter alia, . . . the measure of each

plaintiff’s alleged damages.”). These cumbersome individualized issues, multiplied across more

than 50 plaintiffs in the 15 actions, would drastically undermine the efficiency of a centralized

proceeding.

Second, the causes of action asserted in each case vary, and therefore will create

numerous case-specific factual and legal issues in pretrial proceedings. See In re Uber Techs.,

Inc., Wage & Hour Employment Practices, 158 F. Supp. 3d 1372, 1373 (J.P.M.L. 2016) (denying

transfer despite common questions regarding Uber’s business practices because “the standards

for determining whether independent contractors are employees vary substantially from state to

state”); In re Rite Aid Corp. Wage & Hour Employment Practices Litig., 655 F. Supp. 2d 1376,

1377 (J.P.M.L. 2009) (rejecting transfer when cases raised “violations of various state wage laws

[with] differing provisions”). In the MDL Motion, Plaintiffs attempt to portray the asserted

causes of action as substantially similar, but the most they can say is that each of the cases

involves at least one of seven different causes of action.3 See Pls.’ Mem. at 2 (citing alleged

3 Plaintiff made this observation about the 12 cases identified in their motion, but the same is true of all 15 cases subject to the MDL Motion, including the recently noticed cases Chadha, Leffler, and Nicolai.


12

violations of state consumer protection and unfair competition statutes, negligence, breach of

express contract, breach of implied contract, breach of fiduciary duties, unjust enrichment, and

breach of covenant of duty of good faith and fair dealing). That means that there is not even one

cause of action that all 15 cases share in common. Moreover, while Plaintiffs mention seven

types of claims, the cases in fact present a total of 16 types of claims, eight of which are asserted

in two cases or fewer.4 Requiring a single judge to separately analyze, interpret, and apply such

a wide range of legal claims—many of which will originate from foreign jurisdictions—would

only add complexity and inefficiency to these cases.

Third, substantial differences in the putative class definitions for each case will further

increase complexity and reduce efficiency. Among the cases proposed for centralization, there

are at least 13 distinct state-level classes that have been proposed, four of which are proposed in

only one case. See Agans et al. v. Uber Technologies, Inc., No. 3:17-cv-06759-WHO, Compl. ¶

49 (N.D. Cal.) (Georgia residents); Grice, Compl. ¶¶ 60, 64 (undefined Alabama subclass);

Heller, Compl. ¶ 23 (New York residents; Florida residents). Further, while the majority of the

cases propose a nationwide class, they do not define that class in the same way. The Heller case,

for instance, proposes a nationwide class limited to individuals who were Uber users “during and

since the” data security incident, Heller, Compl. ¶ 23, while other cases propose a nationwide

class of all users impacted by the breach, regardless of whether they stopped using the app before

or after the breach occurred, see, e.g., Agans, Compl. ¶ 47. If these proceedings are centralized,

4 The additional types of claims not mentioned in Plaintiffs’ motion are civil conspiracy, see Nicolai, Compl. ¶¶ 51-62; bailment, see DeSignor, Compl. ¶¶ 88-92; invasion of privacy, see, e.g., Chadha, Compl. ¶¶ 95-100; common-law misrepresentation, see, e.g., Townsend et al. v. Uber Technologies Inc., No. 3:17-cv-06756-VC, Compl. ¶¶ 52-60 (N.D. Cal.); violations of the federal Wiretap Act, Computer Fraud and Abuse Act, and Stored Communications Act, see Harang et al. v. Uber Technologies Inc. et al., No. 1:17-cv-08500, Compl. ¶¶ 373-434 (N.D. Ill.); and the tort of intrusion upon seclusion, see Patni et al. v. Uber Technologies Inc. et al., No. 1:17-cv-08709, Compl. ¶¶ 352-58 (N.D. Ill.).


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an MDL court may have to grapple with unique class certification issues, including adequacy,

commonality, and typicality, for each of these distinct classes and their proposed representatives.

In sum, the numerous individualized factual and legal issues in these cases will thwart

any efficiency gained by litigating two alleged common questions in a single pre-trial

proceeding. The presence of common questions, therefore, should not weigh strongly in favor of

centralization.

D. Centralization Will Not Serve the Convenience of the Parties and the Courts.

Plaintiffs cannot, as they must, establish that transfer is necessary for the convenience of

the parties and witnesses. See 15 Charles Alan Wright & Arthur R. Miller, Federal Practice &

Proc. § 3863 (4th ed. 2016) (“[T]he crucial issue in determining whether to order MDL

treatment is . . . whether the economies of transfer outweigh the resulting inconvenience to the

parties.” (internal quotation marks and citations omitted)). Plaintiffs emphasize the potential

inconvenience to Uber of being subjected to duplicative discovery and facing multiple,

redundant depositions. See Pls.’ Mem. at 4-7. But as this Opposition makes clear, and despite

these suggestions, Uber has a strong preference to avoid a centralized proceeding. Uber believes

that, to the extent that any of these cases are not subject to arbitration, discovery can be

adequately coordinated informally. See Section E, infra. And Uber’s counsel is willing to travel

to attend depositions and hearings in the various courts where the 15 actions are now pending,

especially in lieu of a more complex and inefficient centralized proceeding. The purported

convenience for Uber of a centralized proceeding therefore should not be a factor in the Panel’s

analysis.

Further, Plaintiffs’ motion fails to consider the perspective of other plaintiffs and their

counsel. The cases at issue are all currently pending in districts where the relevant plaintiffs


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chose to file them. Further, eight of those cases are pending in the state in which all of the

plaintiffs allege to reside.5 See Chadha, Compl. ¶¶ 13-14; DeSignor, Compl. ¶ 4; Grice, Compl.

¶ 3; Leffler, Compl. ¶ 5; Nicolai, Compl. ¶ 1; Patni, Compl. ¶ 24; Webber et al. v. Uber

Technologies Inc. et al., No. 3:17-cv-06758-JSC, Am. Compl. ¶¶ 5-10 (N.D. Cal.); West v. Uber

USA, LLC et al., No. 1:17-cv-08593, Compl. ¶ 8 (N.D. Ill.). These plaintiffs and their attorneys

presumably choose to file in these districts at least in part because they are more convenient.

Centralization would rob many of the plaintiffs of that convenience, drawing their cases into a

foreign jurisdiction across the country.

E. Counsel for the Parties Can Coordinate Informally If Needed.

There are viable alternatives to an MDL proceeding. Centralization under § 1407

“should be the last solution after considered review of all other options.” In re Best Buy Co.,

Inc., 804 F. Supp. 2d at 1378. For this reason, the Panel has routinely denied centralization

where informal cooperation among the parties is a viable means to minimize or eliminate

duplicative discovery and other pretrial proceedings, even if the cases present common questions

of fact. See, e.g., In re: Adderall X (Amphetamine/Dextroamphetamine) Marking, Sales

Practices and Antitrust Litig., 968 F. Supp. 2d 1343, 1344-45 (J.P.M.L. 2013) (acknowledging

common factual questions, but denying transfer because it is not “necessary either to assure the

convenience of the parties and witnesses or for the just and efficient conduct of this litigation”).

Such is the case here.

If any common issues remain after the early motions to compel arbitration are resolved,

5 In six of the remaining cases, at least one of the plaintiffs resides in the state in which the case is pending. See Agans, Compl. ¶ 2; Burnett et al. v. Uber Technologies Inc., No. 4:17-cv-06835-DMR, Compl. ¶ 6 (N.D. Cal.); Flores et al. v. Rasier, LLC et al., No. 2:17-cv-08503-PSG-GJS, Am. Compl. ¶¶ 7-12, 16 (C.D. Cal.); Franklin et al. v. Uber Technologies Inc., No. 1:17-cv-08510, Am. Compl. ¶¶ 9-10 (N.D. Ill.); Harang, Compl. ¶¶ 131, 135, 139, 148, 151, 155, 157; Heller, Compl. ¶ 11.


15

Uber would coordinate informally with the plaintiffs’ counsel in the remaining actions to avoid

duplicative discovery and motion practice. This may involve an agreement that “notices for a

particular deposition could be filed in all actions, thereby making the deposition applicable in

each action”; or a stipulation “that any discovery relevant to more than one action may be used in

all those actions”; or “orders from the . . . courts directing the parties to coordinate their pretrial

efforts.” In re Eli Lilly & Co., 446 F. Supp. at 244. Further, if appropriate, Uber would also be

willing to explore other alternatives to § 1407 centralization, including coordination among

actions pending in the same district and motions to stay any duplicative proceedings. See In re:

Gerber, 899 F. Supp. 2d at 1379-80. Given these alternatives, centralization in an MDL

proceeding is unnecessary.

F. If the Panel Grants MDL Status, the Central District of California Is Better Suited to Serve as the Transferee Court than the Northern District of California.

Despite all of the foregoing, if the Panel nonetheless grants the MDL Motion, Uber

respectfully submits that the Central District of California is the appropriate transferee district for

these actions because the litigation can be handled efficiently there and it is accessible to the

parties. Critically, two of the three actions currently pending in the Central District are before

Judge Philip S. Gutierrez, who has experience shepherding multidistrict litigation through to

resolution.6 Further, the Central District enjoys docket conditions conducive to handling

litigation of this scope, and it is convenient for witnesses and parties.

In selecting a transferee district, the Panel considers, among other factors, where cases

are pending; where discovery has occurred; where cases have progressed furthest; the site of the 6 Uber removed the Chadha case to the Central District on January 11, 2018. No. 2:18-cv-00263-DMG-AFM, Dkt. No. 1. Pursuant to Local Rule 83-1.3.1, Uber filed a Notice of Related Cases notifying the Court of the two related actions pending before Judge Gutierrez. Dkt. No. 4. The Central District has not yet entered an order transferring Chadha to Judge Gutierrez, but Uber expects this transfer to occur shortly. This will result in Judge Gutierrez presiding over all three cases in the Central District.


16

occurrence of the common facts; where the cost and inconvenience will be minimized; and the

experience, skill, and caseloads of available judges. See Federal Judicial Center, Manual for

Complex Litigation § 20.131 (4th ed.). The Panel often pursues centralization at the “center of

gravity” of the ligation—that is, where various actions have been filed, where additional actions

are likely to be filed, and where there are opportunities for coordination. Here, the weight of the

factors militates in favor of centralization before Judge Gutierrez in the Central District.

Judge Gutierrez currently presides over two of the three actions pending in the Central

District and likely will preside over the third in light of Uber’s recently filed Notice of Related

Cases. That stands in stark contrast to judges assigned to the remaining lawsuits across the

country, none of whom preside over more than one action stemming from the data security

incident. Moreover, two of the state court actions are pending in the Superior Court of California

for the County of Los Angeles. Togafau v. Uber Technologies, Inc., No. BC686155 (Cal. Super.

Ct. Los Angeles Cnty.); People of the State of California v. Uber Technologies, Inc., No.

CGC14543120 (Cal. Super. Ct. Los Angeles Cnty.). Relevant here, the Panel often considers

parallel litigation in federal and state courts and seeks to “promot[e] this state/federal

coordination.” In re Oil Spill by “Amoco Cadiz” Off Coast of France on Mar. 16, 1978, 471 F.

Supp. 473, 478–79 (J.P.M.L. 1979); see Dunlavey v. Takeda Pharm. Am., Inc., No. 6:12-CV-

1162, 2012 WL 3715456, at *1 (W.D. La. Aug. 23, 2012) (“[J]udges are advised to coordinate

and cooperate in [MDL cases].”); In re: Avaulta Pelvic Support Sys. Prod. Liab. Litig., 746 F.

Supp. 2d 1362, 1364 (J.P.M.L. 2010) (“[C]entralization in [the Southern District of West

Virginia] will facilitate coordination with West Virginia state court actions.”). Thus, centralizing

in the Central District—where three federal actions are two actions in state court are now

pending—enables the federal and state judges to cooperate in managing the litigation.


17

Even setting aside Judge Gutierrez’s familiarity with the pending actions, he is an

experienced jurist who has a proven track record of efficiently and effectively steering complex

litigation toward resolution. See In re: 5-Hour Energy Mktg. & Sales Practices Litig., 949 F.

Supp. 2d 1357, 1358 (J.P.M.L. 2013) (“[C]entralization before Judge Gutierrez permits the Panel

to assign the litigation to an experienced judge with some familiarity with the issues in this

litigation.”); In re: WellPoint, Inc., Out-of-Network UCR Rates Litig., 652 F. Supp. 2d 1375,

1376 (J.P.M.L. 2009); In re Epogen & Aranesp Off-Label Mktg. & Sales Practices Litig., 545 F.

Supp. 2d 1365, 1367 (J.P.M.L. 2008). Judge Gutierrez is presiding over only one other MDL

case at this time.7

The Panel also routinely considers MDL caseload as a factor in adjudicating motions to

transfer under Section 1407. See, e.g., In re Corn Derivatives Antitrust Litig., 486 F. Supp. 929,

932 (J.P.M.L. 1980) (selecting transferee district because it had “drastically fewer multidistrict

litigations than any of the other suggested transferee districts”). There are fewer than half as

many MDL cases pending in the Central District (8) as compared with the Northern District of

California (21).8 Given its relatively light MDL docket at the moment, the Central District has

the necessary resources available to effectively manage a large, centralized action. The Central

District also has a lower percentage of civil cases than the Northern District that are more than

three years old, further demonstrating that it is well suited to effectively and efficiently shepherd

7 The pending case is In re: 5-Hour Energy Mktg. & Sales Practices Litig., MDL 2438. See U.S. Panel on Multidistrict Litigation, MDL Statistics Report – Distribution of Pending MDL Dockets by District (Jan. 16, 2018), available at http://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-January-16-2018.pdf. 8 See id.


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pre-trial proceedings in complex litigations.9

Finally, the Central District “is easily accessible and relatively centrally located for the

parties to this litigation, which is nationwide in scope.” In re: Target Corp. Customer Data Sec.

Breach Litig., 11 F. Supp. 3d 1338, 1339 (J.P.M.L. 2014). The nationwide scope of the

allegations in the complaints and the geographic diversity of the plaintiffs mean that the Central

District is accessible for all parties. Not only is Uber headquartered in California, but all parties,

witnesses, and counsel will have easy access to the Central District through the Los Angeles

International Airport, which services the Greater Los Angeles Area via all major U.S. airlines

with more than 1,500 daily arrivals and departures.10 And significantly, the Panel has relied on

the accessibility of the Central District when selecting it as the appropriate transferee district in

prior cases. See, e.g., In re: Countrywide Fin. Corp. Mortg.-Backed Sec. Litig., 812 F. Supp. 2d

1380, 1384 (J.P.M.L. 2011) (“The Central District of California also is accessible for parties and

witnesses located throughout the United States.”).

Thus, should the Panel determine that centralization is warranted, it should transfer and

centralize the pending actions before a “district[] and judge[] who are not overburdened with

pending MDL dockets . . . to accomplish the efficient and effective resolution of litigation.”

Centralization before Judge Gutierrez would benefit from his familiarity with the cases and

experience with complex, multidistrict litigation.

9 Just 5.6% of current cases on the Central District’s civil docket are more than three years old, and that percentage has not exceeded 6.2% in the last five years. By contrast, 6.2% of current cases on the Northern District’s civil docket are more than three years old, and that percentage was as high as 9.5% as recently as September 2015. See U.S. Courts, Federal Court Management Statistics—Profiles, U.S. District Courts (Sept. 2017), available at http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0930.2017.pdf. 10 See Chris Nichols, How many flights come in and out of LAX every day?, Los Angeles Magazine (May 1, 2011), available at http://www.lamag.com/askchris/how-many-flights-come-in-and-out-of-lax-every1/.


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IV. CONCLUSION

For the foregoing reasons, Uber respectfully requests that the Panel deny Plaintiffs’ MDL

Motion. In the event Plaintiffs’ MDL Motion is granted, however, Uber urges the Panel to

transfer pending actions to and centralize in the Central District of California before Judge Philip

S. Gutierrez.

Dated: January 17, 2018 Respectfully submitted,

/s/ E. Desmond Hogan _______ E. Desmond Hogan Michelle A. Kisloff Allison M. Holt Andrew Bank HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, D.C. 20004 Telephone: 202.637.5600 Facsimile: 202.637.5910 [email protected] [email protected] [email protected] Vassi Iliadis HOGAN LOVELLS US LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 Telephone: 310.785.4600 Facsimile: 310.785.4601 [email protected] Attorneys for Defendants Uber Technologies, Inc., Uber USA, LLC, Rasier, LLC, Rasier-CA, LLC, Dara Khosrowshahi, Angela M. Padilla, Katherine Tassi, Salle Eun Yoo, Sabrina Ross, John Flynn


before the united states judicial panel on … · cordas v. uber techs., inc., ... case mdl no....

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