Case MDL No Document 29 Filed 01/17/18 Page 1 of 25 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

Transcription

1 Case MDL No Document 29 Filed 01/17/18 Page 1 of 25 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION IN RE: UBER TECHNOLOGIES, INC., DATA SECURITY BREACH LITIGATION MDL No DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR TRANSFER AND CENTRALIZATION PURSUANT TO 28 U.S.C. 1407

2 Case MDL No Document 29 Filed 01/17/18 Page 2 of 25 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 E. Counsel for the Parties Can Coordinate Informally If Needed 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 IV. CONCLUSION i

3 Case MDL No Document 29 Filed 01/17/18 Page 3 of 25 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 (N.D. Ohio May 23, 2016), recons. denied, 2016 WL (N.D. Ohio Aug. 2, 2016)...6 Congdon v. Uber Techs., Inc., No. 16-cv YGR, 2016 WL (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 DPW, 2016 WL (D. Mass. July 11, 2016), appeal docketed, No (1st Cir. Aug. 16, 2016)...6 ii

4 Case MDL No Document 29 Filed 01/17/18 Page 4 of 25 Dunlavey v. Takeda Pharm. Am., Inc., No. 6:12-CV-1162, 2012 WL (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 (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 BRO-MRW (C.D. Cal. May 11, 2016)...6 Lee v. Uber Techs., Inc., No. 15-C-11756, 2016 WL (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 , 2016 WL (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 iii

5 Case MDL No Document 29 Filed 01/17/18 Page 5 of 25 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 (J.P.M.L. 2009)...4 Rimel v. Uber Techs., Inc., No. 6:15-cv-2191-Orl-41KRS, 2016 WL (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 PHX-DLR, 2016 WL (D. Ariz. Apr. 7, 2016), recons. denied, 2016 WL (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 (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 , 2016 WL (D. Md. May 3, 2016), recons. denied, 2016 WL (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 (E.D. Mich. Dec. 27, 2016)...6 iv

6 Case MDL No Document 29 Filed 01/17/18 Page 6 of 25 Statutes 28 U.S.C passim 28 U.S.C. 1407(a)...1, 4 Cal. Civ. Code Other Authorities 15 Charles Alan Wright & Arthur R. Miller, Federal Practice & Proc (4th ed. 2016)...13 Federal Judicial Center, Manual for Complex Litigation (4th ed.)...5 Federal Judicial Center, Manual for Complex Litigation (4th ed.)...16 Los Angeles Magazine (May 1, 2011), available at Statistics Report Distribution of Pending MDL Dockets by District (Jan. 16, 2018), available at strict-january pdf...17 U.S. Courts, Federal Court Management Statistics Profiles, U.S. District Courts (Sept. 2017), available at pdf...18 v

7 Case MDL No Document 29 Filed 01/17/18 Page 7 of 25 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 ( MDL Motion ) filed by Plaintiffs Steven Agans and Audrey Diaz Sanchez (collectively, the Plaintiffs ) on December 26, 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 1

8 Case MDL No Document 29 Filed 01/17/18 Page 8 of 25 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. 2

9 Case MDL No Document 29 Filed 01/17/18 Page 9 of 25 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 (C.D. Cal.); Leffler v. Uber Technologies, Inc. et al., No. 3:18-cv (W.D. Wis.); Nicolai v. Uber Technologies, Inc. et al., No. 3:17-cv (D.S.C.); Seifian v. Uber Technologies, Inc., No. 3:17-cv (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. BC (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 CH (Cir. Ct. Cook Cnty., filed Nov. 27, 2017); People of the State of California v. Uber Technologies, Inc., No. CGC (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. 3

10 Case MDL No Document 29 Filed 01/17/18 Page 10 of 25 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 (E.D. Pa.); Grice v. Uber Technologies, Inc., No. 5:17-cv (N.D. Ala.); Heller et al. v. Rasier, LLC et al., No. 2:17-cv (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, (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 4

11 Case MDL No Document 29 Filed 01/17/18 Page 11 of 25 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 (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 5

12 Case MDL No Document 29 Filed 01/17/18 Page 12 of 25 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 , 2016 WL , at *6 (D. Md. May 3, 2016), recons. denied, 2016 WL (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 (E.D. Mich. Dec. 27, 2016); Congdon v. Uber Techs., Inc., No. 16-cv YGR, 2016 WL (N.D. Cal. Dec. 8, 2016); Micheletti v. Uber Techs., Inc., No , 2016 WL (W.D. Tex. Oct. 3, 2016); Lee v. Uber Techs., Inc., No. 15-C-11756, 2016 WL (N.D. Ill. Sept. 21, 2016); Bruster v. Uber Techs., Inc., No. 15-CV-2653, 2016 WL (N.D. Ohio May 23, 2016), recons. denied, 2016 WL (N.D. Ohio Aug. 2, 2016); Suarez v. Uber Techs., Inc., No. 8:16-cv-166-T-30MAP, 2016 WL (M.D. Fla. May 4, 2016); Sena v. Uber Techs. Inc., No. CV PHX-DLR, 2016 WL (D. Ariz. Apr. 7, 2016), recons. denied, 2016 WL (D. Ariz. May 03, 2016); Rimel v. Uber Techs., Inc., No. 6:15-cv-2191-Orl- 41KRS, 2016 WL (M.D. Fla. Aug. 4, 2016); Lainer v. Uber Techs., Inc., No. 2:15-cv BRO-MRW (C.D. Cal. May 11, 2016); Cullinane v. Uber Techs., Inc. No DPW, 2016 WL (D. Mass. July 11, 2016), appeal docketed, No (1st Cir. Aug. 16, 2016). 6

13 Case MDL No Document 29 Filed 01/17/18 Page 13 of 25 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. ). 7

14 Case MDL No Document 29 Filed 01/17/18 Page 14 of 25 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 CH (Cir. Ct. Cook Cnty.); People of the State of California v. Uber Technologies, Inc., No. CGC (Cal. Super. Ct. Los Angeles Cnty.); State of Washington v. Uber Technologies, Inc. (Super. Ct. King Cnty.); Togafau v. Uber Technologies, Inc., No. BC (Cal. Super. Ct. 8

15 Case MDL No Document 29 Filed 01/17/18 Page 15 of 25 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 , 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. 9

16 Case MDL No Document 29 Filed 01/17/18 Page 16 of 25 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 (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 (loss of full names and 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; 10

17 Case MDL No Document 29 Filed 01/17/18 Page 17 of 25 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. 11

18 Case MDL No Document 29 Filed 01/17/18 Page 18 of 25 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 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 ; bailment, see DeSignor, Compl ; invasion of privacy, see, e.g., Chadha, Compl ; common-law misrepresentation, see, e.g., Townsend et al. v. Uber Technologies Inc., No. 3:17-cv VC, Compl (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 (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 (N.D. Ill.). 12

19 Case MDL No Document 29 Filed 01/17/18 Page 19 of 25 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 (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 13

20 Case MDL No Document 29 Filed 01/17/18 Page 20 of 25 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 ; 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 JSC, Am. Compl (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 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, (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 DMR, Compl. 6 (N.D. Cal.); Flores et al. v. Rasier, LLC et al., No. 2:17-cv PSG-GJS, Am. Compl. 7-12, 16 (C.D. Cal.); Franklin et al. v. Uber Technologies Inc., No. 1:17-cv , Am. Compl (N.D. Ill.); Harang, Compl. 131, 135, 139, 148, 151, 155, 157; Heller, Compl

21 Case MDL No Document 29 Filed 01/17/18 Page 21 of 25 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 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, No. 2:18-cv DMG-AFM, Dkt. No. 1. Pursuant to Local Rule , 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. 15

22 Case MDL No Document 29 Filed 01/17/18 Page 22 of 25 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 (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. BC (Cal. Super. Ct. Los Angeles Cnty.); People of the State of California v. Uber Technologies, Inc., No. CGC (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, (J.P.M.L. 1979); see Dunlavey v. Takeda Pharm. Am., Inc., No. 6:12-CV- 1162, 2012 WL , 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. 16

23 Case MDL No Document 29 Filed 01/17/18 Page 23 of 25 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 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 See U.S. Panel on Multidistrict Litigation, MDL Statistics Report Distribution of Pending MDL Dockets by District (Jan. 16, 2018), available at 8 See id. 17

24 Case MDL No Document 29 Filed 01/17/18 Page 24 of 25 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 See U.S. Courts, Federal Court Management Statistics Profiles, U.S. District Courts (Sept. 2017), available at 10 See Chris Nichols, How many flights come in and out of LAX every day?, Los Angeles Magazine (May 1, 2011), available at 18

25 Case MDL No Document 29 Filed 01/17/18 Page 25 of 25 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 Telephone: Facsimile: Vassi Iliadis HOGAN LOVELLS US LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA Telephone: Facsimile: 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 19