Razak et al v. Uber Technologies, Inc. et alMOTION for Partial Summary JudgmentE.D. Pa.May 26, 2017IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ALI RAZAK, KENAN SABANI and KHALDOUN CHERDOUD, individually and on behalf of all others similarly situated, Plaintiffs, v. UBER TECHNOLOGIES, INC. and GEGEN LLC, Defendants. : : : : : : : : : : : : : : Case No. 16-0573 DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Defendants Uber Technologies, Inc. and Gegen LLC, by and through their undersigned counsel, and pursuant to Fed. R. Civ. P. 56, move for partial summary judgment on Plaintiffs’ First Amended Complaint to the extent that Plaintiffs seek to include all time spent online on the Uber App as compensable “hours worked” under the Fair Labor Standards Act or the Pennsylvania Minimum Wage Act. For the reasons set forth more fully in the accompanying Memorandum of Law, which is incorporated herein by reference, there is no genuine dispute as to any material fact that Defendants are entitled to judgment as a matter of law that merely being online on the Uber App does not constitute compensable “hours worked” under the Fair Labor Standards Act or the Pennsylvania Minimum Wage Act. WHEREFORE, Defendants respectfully request that the Court grant their Motion for Partial Summary Judgment and hold that time spent online on the Uber App does not constitute Case 2:16-cv-00573-MMB Document 66 Filed 05/26/17 Page 1 of 3 compensable “hours worked” under the Fair Labor Standards Act or the Pennsylvania Minimum Wage Act. Respectfully submitted, Dated: May 26, 2017 /s/Joshua C. Vaughn Paul C. Lantis, (PA #309240) Wendy Buckingham (PA #320259) LITTLER MENDELSON, P.C. Three Parkway 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102-1321 Telephone: (267) 402-3073 Facsimile: (267) 402-3131 PLantis@littler.com Robert W. Pritchard, (PA #76979) Joshua C. Vaughn, (PA #203040) LITTLER MENDELSON, P.C. 625 Liberty Avenue 26th Floor Pittsburgh, PA 15222 Telephone: (412) 201-7628 Facsimile: (412) 774-1957 RPritchard@littler.com JVaughn@littler.com Andrew M. Spurchise (admitted pro hac vice) LITTLER MENDELSON, P.C. 900 Third Avenue 8th Floor New York, NY 10022 Telephone: (212) 583-2684 Facsimile: (212) 832-2719 ASpurchise@littler.com Attorneys for Defendants UBER TECHNOLOGIES, INC and GEGEN, LLC Case 2:16-cv-00573-MMB Document 66 Filed 05/26/17 Page 2 of 3 CERTIFICATE OF SERVICE I, Joshua C. Vaughn, hereby certify that on this 26th day of May, 2017, I caused the foregoing Defendants’ Motion for Summary Judgment to be filed via the Electronic Case Filing (ECF) System and the documents are available for viewing and downloading from the ECF System by the following attorneys of record: John K. Weston, Esquire Jeremy E. Abay, Esquire Sacks Weston Diamond, LLC 1845 Walnut Street, Suite 1600 Philadelphia, Pennsylvania 19103 Attorneys for Plaintiffs /s/ Joshua C. Vaughn Joshua C. Vaughn Case 2:16-cv-00573-MMB Document 66 Filed 05/26/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ALI RAZAK, KENAN SABANI and KHALDOUN CHERDOUD, individually and on behalf of all others similarly situated, Plaintiffs, v. UBER TECHNOLOGIES, INC. and GEGEN LLC, Defendants. : : : : : : : : : : : : : : Case No. 16-0573 [PROPOSED] ORDER AND NOW, on this ________ day of _____________________, 2017, upon consideration of Defendants’ Motion for Partial Summary Judgment, Memorandum of Law, Statement of Undisputed Facts, Appendix of exhibits in support, and the Plaintiffs’ response thereto, and pursuant to Fed. R. Civ. P. 56, it is hereby ORDERED that: 1. Defendant’s Motion for Partial Summary Judgment is GRANTED; 2. For purposes of the Causes of Action in Plaintiffs’ First Amended Complaint, time spent online on the Uber App does not constitute compensable “hours worked” under the Fair Labor Standards Act or the Pennsylvania Minimum Wage Act. /s/ Michael M. Baylson, J. Case 2:16-cv-00573-MMB Document 66-1 Filed 05/26/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ALI RAZAK, KENAN SABANI and KHALDOUN CHERDOUD, individually and on behalf of all others similarly situated, Plaintiffs, v. UBER TECHNOLOGIES, INC. and GEGEN LLC, Defendants. : : : : : : : : : : : : : : Case No. 16-0573 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 1 of 30 TABLE OF CONTENTS PAGE i I. INTRODUCTION ............................................................................................................. 1 II. PROCEDURAL HISTORY ............................................................................................... 3 III. FACTUAL BACKGROUND ............................................................................................ 5 IV. LEGAL ARGUMENT ..................................................................................................... 10 A. Summary Judgment Standard .............................................................................. 10 B. Online Time Is Not Compensable Because It Is Not Controlled Or Required By Defendants Nor Pursued Necessarily And Primarily For The Benefit Of Defendants’ Business ......................................................................... 12 C. Online Time Is Not Compensable Because Transportation Providers Are Not Required To Remain On Premises And Are Able To Pursue Personal And Other Professional Activities Without Limitation By Defendants .............. 15 1. Plaintiffs Carried A Cell Phone, Were Free To Leave Home, Enjoyed Ultimate Freedom Of Movement Before And After Going Online On The Uber App, And Were Not Subject To Restrictions Imposed By Defendants During Online Time ......................................... 18 2. Plaintiffs Were Not “Called Out” – They Controlled The Number And Frequency Of Trip Requests They Chose To Accept – And Thus Controlled Their Ability To Undertake Personal Pursuits .............. 20 3. Plaintiffs Retained Ultimate And Total Discretion Over Their Ability To Go Online Or Offline And To Pursue Personal Activities Without Interference ................................................................ 22 4. Plaintiffs Routinely Engaged In Personal Pursuits While Online ........... 23 V. CONCLUSION ................................................................................................................ 25 Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 2 of 30 ii TABLE OF AUTHORITIES Page(s) Cases Adair v. Charter County of Wayne, 452 F. 3d 482 (6th Cir. 2006) ..................................................................................................18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ...........................................................................................................10, 11 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) .................................................................................................................12 Anthony v. Small Tube Mfg. Corp., 580 F. Supp. 2d 409 (E.D. Pa. 2008) .......................................................................................11 Armour & Co. v. Wantock, 323 U.S. 126 (1944) ...........................................................................................................15, 16 Bright v. Houston Northwest Medical Center Survivor, Inc., 934 F.2d 671 (1991) ......................................................................................................... passim Cannon v. Vineland Hous. Auth., 627 F. Supp. 2d 171 (D.N.J. 2008) ....................................................................................16, 17 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ...........................................................................................................10, 11 De Asencio v. Tyson Foods, Inc., 500 F.3d 361 (3d Cir. 2007).........................................................................................12, 13, 15 Dinges v. Sacred Heart St. Mary’s Hosps., 164 F.3d 1056 (7th Cir. 1999) .................................................................................................25 In Re Enterprise Rent-A-Car Wage & Hour Litigation, 683 F.3d 462 (3d Cir. 2012).....................................................................................................10 Ford-Greene v. NHS, Inc., 106 F. Supp. 3d 590 (E.D. Pa. 2015) .......................................................................................12 Galena v. Lone, 638 F.3d 186 (3d Cir. 2011).....................................................................................................10 Hertz v. Woodbury County, Iowa, 566 F.3d 775 (8th Cir. 2009) ...................................................................................................12 Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 3 of 30 iii Ingram v. Cty. of Bucks, 144 F.3d 265 (3d Cir. 1998)............................................................................................. passim Jonites v. Exelon Corp., 522 F.3d 721 (7th Cir. 2008) ...................................................................................................18 Martin v. Ohio Turnpike Commission, 968 F.2d 606 (6th Cir. 1992) .............................................................................................18, 23 Philadelphia Metal Trades Council v. Konnerud Consulting W., A.S., 15-cv-5621, 2016 WL 1086709 (E.D. Pa. Mar. 21, 2016) ......................................................12 Reimer v. Champion Healthcare Corp., 258 F.3d 720 (8th Cir. 2001) ...................................................................................................24 Rutlin v. Prime Succession, Inc., 220 F.3d 737 (6th Cir. 2000) ...................................................................................................18 Schaar v. Lehigh Valley Health Servs., Inc., 732 F. Supp. 2d 490 (E.D. Pa. 2010) .......................................................................................10 Skidmore v. Swift & Co., 323 U.S. 134 (1944) .................................................................................................................15 Travelers Indem. Co. v. Stedman, 910 F. Supp. 203 (E.D. Pa. 1995) ............................................................................................11 Statutes 43 P.S. § 333.104 ...........................................................................................................................12 29 U.S.C. §§ 206-207 ............................................................................................................ passim Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-262 .....................................................................12 Other Authorities 29 C.F.R. 553.221(c),(d) ..........................................................................................................15, 16 34 Pa. Code § 231.1 .......................................................................................................................12 Fed. R. Civ. P. 56(c) ................................................................................................................10, 11 Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 4 of 30 1 I. INTRODUCTION Plaintiffs Ali Razak, Kenan Sabani, and Chaldoun Cherdoud (“Plaintiffs”) rest their minimum wage and overtime claims on an incorrect assumption: that their time spent online on the Uber App (“Online Time”) constitutes “hours worked” under the Fair Labor Standards Act (FLSA) and the Pennsylvania Minimum Wage Act (PMWA). With the benefit of expedited discovery, it is now clear that, as a matter of law, Online Time does not reflect compensable “hours worked” under either law. Even if Plaintiffs could establish that they were employees rather than independent contractors (which they cannot),1 their Online Time is not compensable, because they cannot prove that Uber controlled their Online Time or that their Online Time was spent primarily for Uber’s benefit. First, the evidence shows Plaintiffs were free to use their Online Time as they wished, they in fact did exercise their power to use Online Time for their own personal endeavors, and they were not subject to any meaningful control during Online Time. Second, the evidence shows that Plaintiffs sought to maximize their personal benefit and profits – both using the Uber App as well as providing transportation services for other limousine companies and private customers – during Online Time, and retained freedom to decide when, where, and for how long to go online and remain online. Plaintiffs were also able to accept or ignore trip requests while online, and they did so to pursue personal activities. These facts show that Plaintiffs spent their time primarily for their own benefit, not for the benefit of Defendants Uber Technologies, Inc. and Gegen LLC (“Defendants”). Plaintiffs cannot establish either required element to show that Online Time is legally compensable. 1 Defendants in no way concede this point. After this Court has ruled on the issue of whether time spent online on the Uber App constitutes compensable time under the FLSA and PMWA, Defendants intend to continue pursuing their defense that independent transportation providers are independent contractors. Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 5 of 30 2 Plaintiffs and the other independent transportation providers they seek to represent also cannot show, as a matter of law, that they were “suffered or permitted” to work for Defendants, were “engaged to wait,” or were required to remain on premises (or even online) by Defendants during Online Time. To the contrary, the undisputed material facts show that Plaintiffs and other independent transportation providers freely decided whether and when to go online and offline. They unilaterally decided which trip requests they would accept, which trip requests they would ignore, and which trips they would cancel during Online Time. Finally, even when they chose to accept trips, Plaintiffs’ actual time spent providing transportation services to riders reflects only a small fraction of their Online Time. They remained free to engage – and the evidence reflects that they did in fact engage – in personal pursuits without meaningful restrictions both before and after going online. Although Plaintiffs testified that on occasion they chose to make themselves available by going online and monitoring the Uber App for trip requests, the determinative fact – which is undisputed – is that they had the unilateral power to choose, both before and after they went online on the Uber App, what to do with their time. Under the law, time spent sleeping, working at other jobs, operating an independent business, taking personal calls, providing limousine transportation services as an employee or independent contractor of another company, and even attending political protests – all of which Plaintiffs admitted to doing while online on the Uber App – is not recognized as compensable “hours worked” under the FLSA or PMWA. This is because the individual engaging in these activities has the ultimate right and ability to control how they use their time. Thus, an independent transportation provider’s power to choose whether to sleep or to go online Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 6 of 30 3 differentiates this case and the Online Time involved from typical employment, waiting time, or even on-call scenarios.2 For these reasons, even if Plaintiffs were Defendants’ employees (which they are not), the undisputed material facts show that their Online Time is not controlled or required by Defendants, and that they spend time online for their benefit, and not primarily for the benefit of Defendants. Accordingly, Plaintiffs cannot, as a matter of law, demonstrate that Online Time is compensable, and this Court should enter partial summary judgment against Plaintiffs and for the Defendants, holding that Online Time does not constitute compensable “hours worked” under the FLSA or PMWA. II. PROCEDURAL HISTORY The central issue in this case is whether independent limousine service providers in Philadelphia, Pennsylvania, who are certified by the Philadelphia Parking Authority (PPA) and who use Uber’s smartphone application (the “Uber App”) to connect with riders, are “independent contractors” or “employees.” Plaintiffs’ First Amended Complaint (FAC), Dkt. 47, ¶¶ 3, 4, 87. Despite executing contracts wherein they acknowledged and agreed that they were independent contractors, Plaintiffs now claim that they and every other limousine service provider (which they refer to as “drivers”) who used the Uber App in Philadelphia, Pennsylvania were in fact “employees” of Uber who are owed minimum wage for all “hours worked” and overtime wages for all “hours worked” in excess of forty per week under the FLSA, 29 U.S.C. § 207(a), and PMWA, 43 Pa. Stat. § 133.104(c). See generally FAC, ¶¶ 3-4, 16, 87, 94, 133, 143. 2 This power lies at the heart of what it means to be an independent contractor, because employees work based on the needs (and at the command) of the business. The time they spend at work or significantly restricted by an employer in their ability to pursue personal activities – whether in an office or tethered to a computer – is not their own, but rather spent for the benefit of the employer. By contrast, independent contractors choose which jobs to accept, have the right to offer their services to more than one entity, and pursue both work and personal activities based on their needs and for their benefit. Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 7 of 30 4 In their First Amended Complaint, Plaintiffs asserted that all of their Online Time constituted compensable “hours worked” under the FLSA and PMWA. Plaintiff Razak averred that he “worked at least 84 hours for Defendants” during the week of November 30, 2015 (FAC, ¶¶ 134 a., 146 a.), and presented a “Weekly Statement” to support his assertion that his “time online” that week was “84hr 4min.” (FAC Exhibit A). Plaintiff Sabani averred that he “worked at least 87.1 hours for Defendants” during the week of November 9, 2015 (FAC, ¶¶ 134 b., 146 b), and presented a “Week in Review” document purporting to reflect that he spent 87.1 “hours online” that week. (FAC Exhibit B-2). Finally, Plaintiff Cherdoud averred that he worked more than 40 hours during the week of December 21, 2015 (FAC, ¶¶ 134 c., 146 c), and presented a document purporting to reflect 49 hours and 15 minutes of “online hours” that week. (FAC Exhibit C).3 This Court, in its December 14, 2016 opinion on Defendants’ Motion to Dismiss, recognized “that the question of whether Plaintiffs’ on-call time [or, more precisely, the time spent by Plaintiffs online on the Uber App, which is referred to herein as “Online Time”] is compensable under the FLSA is an important, potentially dispositive one in this case.” Dkt. 53, pgs. 1, 10. Thus, the Court directed the parties to engage in “expedited discovery regarding only the compensability of Plaintiffs’ on-call time, i.e., the time during which Plaintiffs alleged they were logged into the Uber App [or, more precisely, the time during which Plaintiffs alleged they were online on the Uber App].” Id., pg. 11. Following this period of expedited discovery, the Court invited Defendants to submit a dispositive motion regarding the compensability of Online Time. Dkt. 62 at ¶ 6. 3 Plaintiff Cherdoud inexplicably avers in paragraphs 134 and 146 that he worked at least 84 hours for Defendants, yet Exhibit C upon which he relies reflects total online time of 49 hours and 15 minutes. Presumably, Plaintiff Cherdoud’s assertion of 84 hours of work is an inadvertent “cut and paste” typographical error. Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 8 of 30 5 III. FACTUAL BACKGROUND4 Uber is a technology company that offers a mobile smartphone application to connect riders looking for transportation to independent transportation providers looking for riders (the “Uber App”). (SOF, ¶1). Transportation companies and individual transportation providers who wish to provide “black car” limousine services in Philadelphia are required by applicable regulation to do so in connection with an entity licensed by the PPA. (SOF, ¶2). Gegen is a wholly-owned subsidiary of Uber that holds a certificate of public convenience from (and is licensed by) the PPA to operate as a broker of limousine services. (SOF, ¶3). Qualified transportation companies may enter into an agreement with Gegen to enable them to provide limousine services in Philadelphia. (SOF, ¶4). In turn, these independent transportation companies are able to use the Uber App to obtain requests to provide limousine services on the UberBLACK product. (SOF, ¶5). Independent transportation providers (like Plaintiffs) who operate their own (or affiliate with a) transportation company for purposes of using the UberBLACK product must first enter into an agreement with the transportation company setting forth the terms for using Uber’s technology. (SOF, ¶6). Some UberBLACK transportation providers operate under the certificate of public convenience held by Gegen, while others operate under a certificate held by other limousine companies licensed by the PPA. (SOF, ¶7). Each Plaintiff signed up to use the Uber App to receive trip requests and connect with riders using the UberBLACK product. (SOF, ¶¶8-10). Many transportation providers (including, for example, Sabani and Cherdoud) own and operate companies that contract directly with Gegen. (SOF, ¶11). Transportation providers using the UberBLACK product have complete 4 Defendants incorporate by reference their Statement of Undisputed Material Facts (“SOF”). This Factual Background section is for ease of reference and is not an exhaustive list of the facts of the case or pertinent to the question of the compensability of Online Time. Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 9 of 30 6 discretion to operate their independent business and to divert their drivers at their discretion. (SOF, ¶12). Transportation providers, like Plaintiffs, can provide transportation services outside of the Uber App. (SOF, ¶13). For example, Plaintiff Sabani testified that he runs his own limousine company, Freemo Limo, and has up to five other transportation providers driving for his company. (Id.). He also reported personally providing over 100 trips through his company, and admitted that Uber placed no restrictions on his right to receive Freemo Limo trip requests while simultaneously online on the Uber App. (Id.). To access the Uber App, transportation providers open the app on their mobile device and log in using their username and password. (SOF, ¶14). After logging on, transportation providers tap a button to go online to be eligible to receive trip requests. (SOF, ¶15). Once a transportation provider taps the go online button, there is nothing else they need to do to receive trip requests. (SOF, ¶16). Once online, there is no requirement that the driver be engaged with the Uber App in order to stay online. (SOF, ¶17). Defendants do not implement negative repercussions for a transportation provider who chooses to not go online on the Uber App or who chooses to go offline from the Uber App. (SOF, ¶19). When a trip request comes in, the transportation providers’ phone will beep and the screen will flash. (SOF, ¶20). Trip requests appear on the mobile device with the rider’s name, their star rating, their pickup location, any surge fare in effect, the product that this trip is for, and how long the Uber App estimates it will take for the transportation provider to get to the rider. (SOF, ¶21). Defendants do not require transportation providers to answer trip requests. (SOF, ¶22). Transportation providers have a choice to either accept or decline trip requests. (SOF, ¶23). Transportation providers may take into account any number of factors (such as the time, location, and passenger rating) in making the decision about Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 10 of 30 7 whether to accept a trip request. (SOF, ¶24). If a transportation provider wants to accept a trip request, they tap to accept. (SOF, ¶25). If a transportation provider does not press the accept trip button within a period of time, it will be deemed rejected by default. (SOF, ¶26). The request will then be offered to another online transportation provider. (SOF, ¶27). If no other transportation provider is available or accepts, the trip request goes unfulfilled. (SOF, ¶28). If a transportation provider ignores three consecutive trip requests, the Uber App may automatically move the transportation provider offline as a system integrity protection and in an effort to avoid extended wait times for riders who are waiting for a transportation provider to accept the trip request. (SOF, ¶29). Transportation providers who have been automatically transitioned to offline status may go back online if they wish to do so. (SOF, ¶30). Transportation providers retain the sole right to determine when, where, and for how long to utilize the Uber App. (SOF, ¶31). That means that transportation providers choose when to go online and when to go offline. (SOF, ¶32). Transportation providers are not required to remain on Uber’s premises, physically or virtually (i.e., being online) at any time; they have complete control over when their Online Time begins and when it ends. (SOF, ¶33). Transportation providers decide where to actually go to offer their services and to maximize their chances of getting a trip. (SOF, ¶34). In most areas, trip requests are automatically routed to the online transportation provider who is closest to the rider. (SOF, ¶35). At the airport and train station, there is a “queue” system that routes trips to the next driver in the queue. (SOF, ¶36). A transportation provider who is online enters the “queue” immediately upon entering the designated airport or train station zone. (SOF, ¶37). As long as the transportation provider remains in the airport or train station zone, they will move up the queue. (SOF, ¶38). At the airport, transportation providers must actually Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 11 of 30 8 enter the west parking lot (a parking lot that is within the airport zone) to receive a trip request; trip requests are then distributed to the transportation provider who is in the west parking lot based on position in the queue. (SOF, ¶39). A transportation provider who is in the airport zone, but outside the west parking lot, could therefore remain online for hours (advancing all the way to first in the queue), despite not being in position to even receive (much less accept) trip requests. (SOF, ¶40). After a transportation provider accepts a trip request, the transportation provider may cancel the trip at any point. (SOF, ¶41). A transportation provider may even choose to cancel a trip after the rider has entered the vehicle. (SOF, ¶42). Transportation providers’ accounts are not deactivated or put on hold for rejecting trips or their trip acceptance rate. (SOF, ¶43). A transportation provider’s acceptance rate has no effect on his/her ability to provide transportation services using the UberBLACK product. (SOF, ¶44). When transportation providers are online, they are free to use their Online Time to pursue any activity of their choosing. (SOF, ¶45). For example, if a transportation provider is online, he/she is free to: sleep (SOF, ¶46); accept ride requests from private clients (SOF, ¶45), and provide transportation services to non-Uber passengers (Id, ¶¶45, 47, 71-76, 77-81); attend a protest (SOF, ¶48); go into a convenience store (SOF, ¶49); take personal phone calls (SOF, ¶¶45, 49); leave their vehicle to smoke cigarettes (SOF, ¶48); Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 12 of 30 9 reject trip requests or go offline at their discretion (e.g., if they do not want to pick up passengers, if it is late at night, if they want to go home, if they are on a personal phone call, or if the rider has a low rating) (SOF, ¶¶50, 51); send e-mails advertising their personal limousine company (SOF, ¶52); or simultaneously run a personal transportation company and distribute trips to other drivers (SOF, ¶53). Plaintiff Cherdoud reports having fallen asleep while online. (SOF, ¶54). Plaintiff Cherdoud also reports that some transportation providers leave their phone online in the airport zone so they will move up in the queue—without actually waiting at the airport. (SOF, ¶55). According to Plaintiff Cherdoud, some transportation providers leave their phones online in the airport zone (but outside the west parking lot) then go home or pursue other personal endeavors while still online on the Uber App and moving up the queue at the airport. (Id.). Plaintiff Sabani admits having done this himself so that he can go to his house to sleep while online. (SOF, ¶46). Plaintiff Razak also stated that he has left his phone online in the airport zone and in the airport queue and left the airport with a friend. (SOF, ¶56). Plaintiff Sabani also acknowledges that he sometimes forgets to go offline so his phone stays in online mode, even though he does not intend to provide transportation services. (SOF, ¶46). One transportation provider testified that he is a Certified Public Accountant (CPA), and he goes online while he is in his CPA offices, performing his CPA work. (SOF, ¶65). While online, he continues doing his CPA work such as tax returns and audits. Id. If he receives a trip request, and he’s not otherwise in a client meeting or busy with something, he may accept the request. Id. Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 13 of 30 10 Periodically, Defendants communicate information to transportation providers. (SOF, ¶57). For example, Defendants may send a message to transportation providers about a local event at a specific location where rider demand may be high, or a map showing areas where riders need drivers most. (SOF, ¶58). But it is up to the transportation provider to choose whether to look at the information and to decide whether to use that information in making decisions about when and where to provide transportation services. (SOF, ¶59). Transportation providers are free to completely ignore this information. (SOF, ¶60). For example, Plaintiff Razak admitted that he did not go to all of the places identified by Uber as having potentially high rider demand; rather, he chose where to go. (SOF, ¶61). IV. LEGAL ARGUMENT A. Summary Judgment Standard Summary judgment should be granted where “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); In Re Enterprise Rent-A-Car Wage & Hour Litigation, 683 F.3d 462, 467 (3d Cir. 2012). A disputed fact is not “material” unless its resolution could affect the outcome of the case, and a dispute is not “genuine” unless the evidence bearing on the disputed fact is such that a reasonable person could find for the non- moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Under Rule 56, the court must view evidence in the light most favorable to the nonmoving party. Galena v. Lone, 638 F.3d 186, 196 (3d Cir. 2011). However, “unsupported assertions, conclusory allegations or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F. Supp. 2d 490, 493 (E.D. Pa. 2010) (citing Williams v. Borough of W. Chester, Pa., 891 F.2d 458, 461 (3d Cir. 1989)). Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 14 of 30 11 To win summary judgment, the moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the court that “the nonmoving party has failed to make a sufficient showing of an essential element of her case.” Celotex Corp., 477 U.S. at 323. Once the moving party has carried its burden, the adverse party must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial through affidavits, depositions, answers to interrogatories, and admissions on file. Id. at 324. To survive a summary judgment motion, the plaintiff must come forward with specific admissible and credible evidence supporting each element essential to her case, and “may not rest on conclusory allegations or bare assertions alone.” Travelers Indem. Co. v. Stedman, 910 F. Supp. 203, 206 (E.D. Pa. 1995) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)). The mere existence of a scintilla of evidence in support of the adverse party’s case is insufficient; there must be evidence on which the jury could reasonably find for the adverse party. Anderson, 477 U.S. at 252. The Court must decide a pre-certification motion for summary judgment as it would decide any other Rule 56 motion. For each claim, the question is: Can Plaintiffs “present competent evidence from which a jury could reasonably find in [their] favor”? Anthony v. Small Tube Mfg. Corp., 580 F. Supp. 2d 409, 420, 428, n.60 (E.D. Pa. 2008) (applying Anderson “prior to class certification”). Once there is no genuine issue of material fact as to how a plaintiff spends his time, the determination of whether a plaintiff’s activities exclude him “from the overtime benefits of the FLSA is a question of law,” which can properly be resolved on summary judgment. Ingram v. Cty. of Bucks, 144 F.3d 265, 267 (3d Cir. 1998) (citing Renfro v. City of Emporia, 948 F.2d 1529, 1536 (10th Cir.1991) (relying on undisputed facts to grant summary judgment), and Berry v. County of Sonoma, 30 F.3d 1174, 1180 (9th Cir.1994) (Whether Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 15 of 30 12 “limitations on the employees’ personal activities while on-call are such that on-call waiting time would be considered compensable overtime under the FLSA is a question of law.”)). B. Online Time Is Not Compensable Because It Is Not Controlled Or Required By Defendants Nor Pursued Necessarily And Primarily For The Benefit Of Defendants’ Business. In order to establish liability for unpaid wages under the FLSA and PMWA, Plaintiffs bear the burden of proving that they were Defendants’ employees and they performed work for which they were not properly compensated. 29 U.S.C. §§ 206-207; 43 P.S. § 333.104; Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946);5 Hertz v. Woodbury County, Iowa, 566 F.3d 775, 783 (8th Cir. 2009). For purposes of this motion, the sole focus is on whether Online Time is compensable “work” under the FLSA and PMWA.6 Although the FLSA does not define “work,” the United States Supreme Court and United States Court of Appeals for the Third Circuit have defined the contours of compensable “work” under the FLSA to mean activity undertaken by an employee that is “controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 373 (3d Cir. 2007) (emphasis added) (citing Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944), Anderson, 328 U.S. at 691-3, Armour & Co. v. Wantock, 323 U.S. 126 (1944), and IBP, Inc. v. Alvarez, 546 U.S. 21, 25, (2005)). Therefore, this case turns on whether transportation providers’ 5 Superseded on other grounds by statute, Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-262. 6 In general, the PMWA largely tracks the FLSA. Compare 29 U.S.C. §§ 206, 207 and 43 Pa. Stat. Ann. § 333.104(a), (c). See also, 34 Pa. Code § 231.1 (defining “hours worked” under the PMWA). For this reason, federal courts are directed to interpretation of the FLSA when analyzing claims under the PMWA. See, e.g., Ford-Greene v. NHS, Inc., 106 F. Supp. 3d 590, 610-13 (E.D. Pa. 2015); Philadelphia Metal Trades Council v. Konnerud Consulting W., A.S., 15-cv-5621, 2016 WL 1086709, at *5-6 (E.D. Pa. Mar. 21, 2016) (same). Accordingly, the Court should analyze the sufficiency of Plaintiffs’ PMWA allegations contained in Count Four and their FLSA allegations contained in Count Two, together, applying the FLSA’s analytical framework. Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 16 of 30 13 Online Time is controlled or required by Defendants and whether Online Time was pursued necessarily and primarily for the benefit of Defendants and its business. Here, Online Time is not controlled or required by Defendants. Plaintiffs acknowledge that transportation providers retain the sole right to determine when, where, and for how long they are online on the Uber App. (SOF, ¶31). Plaintiff Cherdoud acknowledged that transportation providers choose when to go online and when to go offline. (SOF, ¶32). Transportation providers are thus not required to remain on Uber’s premises, physically or virtually (i.e., by being online), during Online Time. (SOF, ¶33). Plaintiff Razak conceded that he was able to go offline whenever he wanted, that he could go offline forever, and that he can stay online as long as he wants. (Id.). Plaintiffs and other transportation providers also decide where to actually go when they are online. (SOF, ¶34). Plaintiff Sabani testified that “[t]he airport works the best for me. That’s where I get most of the work,” but he conceded that Uber does not require going to the airport, and that “It’s my choice.” (Id.). Once online, there is no requirement that the driver be engaged with the Uber App in order to stay online. (SOF, ¶17). Defendants do not impose negative repercussions on a transportation provider who chooses to not go online to the Uber App or who chooses to go offline from the Uber App. (SOF, ¶19). Defendants also do not require transportation providers to answer trip requests. (SOF, ¶22), so transportation providers have a choice to either accept or ignore trip requests. (SOF, ¶23). Therefore, Defendants do not control Online Time, nor do they require it. For this reason alone, Online Time is non-compensable. In addition, Plaintiffs spent time online on the Uber App for their own benefit, and certainly not “necessarily and primarily for the benefit of” Defendants and their business. Plaintiffs Cherdoud and Razak will be the first to admit that they were online so they could boost Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 17 of 30 14 their income, thereby furthering their interests and benefiting themselves. (SOF, ¶¶62-63). For example, Plaintiff Razak testified that he could decide when he was not going to use the Uber App, but that he would not make as much money if he wasn’t online. (SOF, ¶63). Plaintiff Cherdoud also testified that he reads Uber communications for ideas of where he can boost his income. (SOF, ¶62). Plaintiffs Razak and Sabani testified that they were able to make personal phone calls while online (SOF, ¶¶45, 49-51). Plaintiff Sabani testified that he was able to receive trip requests and to provide rides through his personal Freemo Limo limousine company while online. (SOF, ¶¶11, 13, 45). Plaintiff Sabani also testified that he was able to run his limo company and to distribute trips to other drivers while online. (SOF, ¶53). Plaintiff Cherdoud testified that he provides transportation services outside of the Uber App through Freemo Limo. (SOF, ¶47). Plaintiff Razak testified that he provided trips for Blacklane limousine company. (SOF ¶71). A review of Plaintiff Razak’s Blacklane trip times and the times when he was online on the Uber App appear to show that he provided trips for Blacklane during Online Time. (SOF ¶¶72-76). Another UberBLACK transportation provider, Kevin Bryant, appears to have simultaneously been online on the Lyft App and the Uber App. (SOF ¶¶77-79). Plaintiffs cannot dispute that providing transportation services to non-Uber passengers during Online Time can only be done for their benefit rather than for the benefit of Defendants. Plaintiffs Razak and Sabani testified that they chose to go to a protest while online. (SOF, ¶48). Plaintiff Razak also stated that he has left his phone online in the airport zone and queue and left the airport with a friend (SOF, ¶56), thereby using Online Time for his benefit. Sabani acknowledged that he sometimes forgets to go offline, so his phone stays in online mode despite him having no intention on accepting trip requests. (SOF, ¶46). Another transportation provider stated that he is a Certified Public Accountant (CPA), and he goes online while he is in his CPA Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 18 of 30 15 offices. (SOF, ¶65). While online, he continues doing his CPA work. Id. It is indisputable that all of these activities are pursued for the benefit of the transportation provider and not Defendants. Other than when actually transporting a passenger, which only occurred during a fraction of Plaintiffs’ Online Time (SOF, ¶¶68-70), Plaintiffs did not spend time online on the Uber App for Defendants’ benefit. C. Online Time Is Not Compensable Because Transportation Providers Are Not Required To Remain On Premises And Are Able To Pursue Personal And Other Professional Activities Without Limitation By Defendants. Even if this Court were to review Online Time under traditional “on call” jurisprudence, the evidence clearly establishes that Online Time is non-compensable as a matter of law. The FLSA does not specify whether time spent “on call” is considered “work” nor does it define the circumstances under which such time is compensable. However, the United States Supreme Court held in companion cases that while time spent “on call” may be compensable where “the employee was engaged to wait,” it is not compensable where the employee is merely “waiting to be engaged.” Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944); Skidmore v. Swift & Co., 323 U.S. 134, 136-37 (1944). By analogy, in order for Online Time to be compensable in this case, Plaintiffs must show that they were “engaged to wait” during the alleged uncompensated online hours. The Department of Labor has provided guidance on the compensability of on-call time through the promulgation of regulations that generally provide that on-call time is compensable only where the employee is required to remain on the premises, or where the time is “so circumscribed” that it effectively restricts the employee’s ability to use the time for personal pursuits. 29 C.F.R. § 553.221(c). Where the employee is free to be at home and pursue personal pursuits and may only have to return to the worksite in the event of an emergency, the time is not compensable. 29 C.F.R. § 553.221(d). For example, where “a firefighter has returned home after Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 19 of 30 16 the shift, with the understanding that he or she is expected to return to work in the event of the emergency in the night, such time spent at home is normally not compensable.” Id. The Third Circuit took up the question of the compensability of on-call time in the case of Ingram, 144 F.3d at 265. There, the court recognized that, under Supreme Court precedent and Department of Labor regulations, on-call time may be compensable under the FLSA under two circumstances: (1) “if the employee is required to remain on premises”; or (2) “if the employee, although not required to remain on the employer’s premises, finds his time on-call away from the employer’s premises is so restricted that it interferes with personal pursuits.” Id. at 268; see also Armour, 323 U.S. at 133; 29 C.F.R. 553.221(c),(d). To establish that on-call time is compensable, a plaintiff must prove that the obligations associated with being on-call caused “significant interference” with their personal life. Ingram, 144 F.3d at 268. The Ingram court articulated a four-factor test to determine whether on-call time interferes with a plaintiffs’ personal life enough to be deemed compensable: (1) “whether the employee may carry a beeper or leave home”; (2) “the frequency of calls and the nature of employer’s demands”; (3) “the employee’s ability to maintain a flexible on-call schedule and switch on-call shifts”; and (4) “whether the employee actually engaged in personal activities during on-call time.” Ingram, 144 F.3d at 268. Only if these four factors “reveal onerous on-call policies and significant interference with the employee’s personal life” is the on-call time compensable. Cannon v. Vineland Hous. Auth., 627 F. Supp. 2d 171, 176–77 (D.N.J. 2008) (quoting Ingram, 144 F.3d at 268). In the ordinary on-call case, the employee-plaintiff is required to remain on call for a specified period of time and to respond to all calls that are received during the on-call period. In such cases, the primary question is typically whether those calls are so restrictive that the employee is unable to use the on-call time for personal pursuits (e.g., due to the frequency of the Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 20 of 30 17 calls or the burdens imposed by the employer on the employee’s freedom of movement). In those cases, the nature of compensable waiting time and on-call scenarios presupposes an obligation to remain on call during the specified time and to complete a task for the employer upon the employer’s command or call. Here, however, Plaintiffs concede that they could go offline whenever they chose to do so, and were not required to respond in any way upon receiving a trip request. (SOF, ¶¶17, 32-33, 50). They could accept the request, ignore the request, decline the request, call the rider, or even go offline to prevent more requests from being received. (Id.). Thus, the instant action is fundamentally different from the ordinary on-call case. Here, Plaintiffs are not even required to be online at any particular time. And, once online, they are completely free to do whatever they want, including to go wherever they want and to ignore and/or reject any and all calls that they may receive, and even to go offline at their whim. Even ignoring these clear differences between transportation providers using the Uber App and employees in a traditional on-call scenario, here there is no dispute that Plaintiffs were not required to remain on Defendants’ premises – either physically or virtually – during Online Time. (SOF, ¶33). In addition, Plaintiffs’ Online Time is not “so circumscribed” that it caused a “significant interference” in their ability to use the time for personal pursuits. Consideration of each of the Ingram factors in the context of the underlying record makes clear that there are extended periods of time in between trip requests where Plaintiffs acknowledge that they were free to choose whether and when to go online, and were free to (and actually did) use their Online Time to engage in a multitude of personal pursuits without interference. Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 21 of 30 18 1. Plaintiffs Carried A Cell Phone, Were Free To Leave Home, Enjoyed Ultimate Freedom Of Movement Before And After Going Online On The Uber App, And Were Not Subject To Restrictions Imposed By Defendants During Online Time. Under the first factor set forth by the Third Circuit, a district court must consider whether the employees enjoy “freedom of movement” while on-call. Ingram, 144 F.3d at 269. In Ingram, the court found the requisite freedom of movement where there was no written policy about restrictions while on-call and the employees were only required to respond by reporting to work within a reasonable time when paged. Id. at 266, 268-69. In so holding, the court in Ingram relied on the Sixth Circuit’s decision in Martin v. Ohio Turnpike Commission, 968 F.2d 606 (6th Cir. 1992), which found that time spent on-call was not compensable where the employer did “not require its employees to arrive within a certain time after being called.” Id. at 612 (emphasis added). Courts routinely find that on-call time where employees have freedom of movement is not compensable. See Bright v. Houston Northwest Medical Center Survivor, Inc., 934 F.2d 671 (1991) (en banc) (finding on-call time not compensable); Adair v. Charter County of Wayne, 452 F. 3d 482, 487-89 (6th Cir. 2006) (finding on-call time not compensable and affirming summary judgment where on-call policy concerning officers employed at airport required officers to carry a pager, and live within 30 minutes of airport); Rutlin v. Prime Succession, Inc., 220 F.3d 737, 738–44 (6th Cir. 2000) (finding on-call time not compensable and affirming summary judgment where a funeral director was on-call from 5:00 p.m. until 8:00 a.m., expected to remain at home while on-call, required to answer the calls, and answered fifteen to twenty calls per shift); Jonites v. Exelon Corp., 522 F.3d 721, 723-24 (7th Cir. 2008) (finding on-call time not compensable and affirming summary judgment where the employees were required to stay within a two-hour radius of the employer, accept thirty-five percent of calls, and carry a beeper or phone on which the employer could contact them). Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 22 of 30 19 The Fifth Circuit’s analysis, in Bright v. Houston Northwest Medical Center Survivor, Inc., 934 F.2d 671 (1991) (en banc), also illustrates that on-call time is not compensable where an employee is primarily free to do what he wishes during the on-call time. In Bright, the court found that on-call time was not compensable where the plaintiff “was free to be at his home or at any place or places he chose, without advising his employer, subject only to the restrictions that he be reachable by beeper, not be intoxicated and be able to arrive at the hospital in ‘approximately’ twenty minutes.” Id. at 676 (emphasis added). The court noted that the plaintiff was “not only able to carry on his normal personal activities at his own home but could also do normal shopping, eating at restaurants, and the like, as he chose.” Id. Here, like the cases discussed above, the evidence reveals that Defendants maintained no policies that would restrict Plaintiffs’ actions or movements during Online Time. (SOF ¶64). Defendants have not specified the time and place where transportation providers are required to be when they were online, how long the online period will last, what transportation providers are permitted to do and not do while online, how frequently they must be online, or established any other requirements for Plaintiffs’ Online Time. (Id.). Even after transportation providers choose to press the button to go online, it is they who dictate the physical location in which they position themselves (e.g., whether to position themselves near a high traffic area for ride requests or away from such areas), what they do while they are online, whether to accept a ride request, and whether to cancel a ride request. (SOF ¶¶23, 24, 33, 34, 41, 42, 45-56). Defendants do not require transportation providers to answer trip requests while online. (SOF ¶22). Plaintiffs Cherdoud and Sabani testified that they chose the locations where they believed they had the best chance of making money. (SOF ¶34). Plaintiff Sabani, for example, testified that he typically chooses to go to the airport, because it works the best for him and he receives the most trip Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 23 of 30 20 requests there. (Id.). In response to questions about who decides where he actually goes, Cherdoud responded “[o]f course it’s me, but I keep taking information through Uber App to figure out where is the hotspot.” (Id.). While transportation providers may choose to pay attention to the Uber App and accept trip requests while they are online in order to increase their income, they are not required to do so. (SOF, ¶18, 62). If there were insufficient transportation providers to provide rides, there was nothing Defendants could do to force additional transportation providers to go online on the Uber App or to accept trip requests. (SOF, ¶67). In sum, Plaintiffs’ Online Time is not compensable because Plaintiffs enjoyed the ability to move freely and were not restricted by Defendants during Online Time. 2. Plaintiffs Were Not “Called Out” – They Controlled The Number And Frequency Of Trip Requests They Chose To Accept – And Thus Controlled Their Ability To Undertake Personal Pursuits. For the second Ingram factor, a court must look at the frequency and urgency of calls to determine whether they are of such frequency and urgency that they preclude the use of on-call time for personal pursuits. Ingram, 144 F.3d at 269. Specifically, the Ingram court found while on-call duties that resulted in three to five calls per day that required a response within twenty minutes may be an example of a compensable on-call scenario, “employees who are called to duty less frequently, with a longer response time, can pursue personal activities with minimal interference.” Id. Although courts typically review the frequency of calls and how quickly the employee must respond, these cases provide little guidance in a case like this, where transportation providers are not “required” to be online or even respond to trip requests at all. Here, transportation providers like Plaintiffs retain the sole right to determine when, where, and for how long to utilize the Uber App. (SOF ¶31). The frequency of their calls is entirely dependent on how many hours they choose to be online, and how many trip requests they choose to accept. Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 24 of 30 21 Transportation providers like Plaintiffs have the ability to even cancel a trip after accepting a trip request (SOF ¶¶24, 41, 42), which shows that they – and not Defendants – maintain the ultimate control and freedom to dictate their activities, movement, locations, and effort. Therefore, transportation providers can go online for long periods of time with few to no trips. Indeed, transportation providers can choose not to go online at all, thereby dropping the frequency and number of trip requests to zero. Without any requirements imposed by Defendants, there is no required frequency to receive trip requests or urgency to be online. To the extent a transportation provider feels urgency to be online, such urgency is entirely self-imposed as a matter of personal choice. A review of the Exhibits that Plaintiffs attach to their First Amended Complaint further underscores the infrequent nature of trips that occurred during Online Time. Plaintiff Cherdoud attached a statement that shows that he accepted and completed only 6 trips in just over 49 hours of Online Time during the week beginning December 21, 2015. FAC, Ex. C. These 6 trips lasted only 2.5 hours, which is approximately 5% of his 49 hours of Online Time that week, and amounts to less than one trip per day. (SOF ¶68). Similarly, Plaintiff Sabani attached a statement that shows he accepted just 17 trips over a period of 87.1 hours for the week ending November 16, 2015. (FAC, Ex. B-2). These trips lasted only slightly over 6 hours, which is only approximately 7.1% of the 87.1 hours he spent online, and amounts to less than 2.5 trips per day. (SOF ¶69). Plaintiff Razak attached a statement that shows he accepted 20 trips during the week beginning November 30, 2015. (FAC, Ex. A). These trips lasted only approximately 8 hours, which is a fraction of the hours he avers to have been online, and amounts to less than 3 trips per day. (SOF ¶70). Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 25 of 30 22 As in Gilligan and Bright, the undisputed material facts demonstrate that the frequency and lack of urgency of Plaintiffs’ trip requests did not preclude them from using Online Time for personal pursuits. In sum, the complete control Plaintiffs exerted over when they chose to go online and receive trips compels a determination that their Online Time is not compensable. 3. Plaintiffs Retained Ultimate And Total Discretion Over Their Ability To Go Online Or Offline And To Pursue Personal Activities Without Interference. In Ingram, the Third Circuit also considered whether the employee could “trade shifts to pursue personal activities without interference.” 144 F.3d at 269. Here, transportation providers had the ultimate schedule flexibility for their online time in that they were entirely able to schedule themselves, which effectively amounts to no schedule. Transportation providers retain the sole right to determine when, where, and for how long to utilize the Uber App. (SOF, ¶31). This meant transportation providers were always able to maintain a flexible online “schedule” (and to effectively “switch shifts” with infinite discretion and without any interference). Defendants have not specified the time and place where transportation providers are required to be when they were online, how long the online period will last, what transportation providers are permitted to do and not do while online, how frequently they must be online, or established any other requirements for Plaintiffs’ Online Time. (SOF, ¶64). The ability of a transportation provider to choose the dates and times when they choose to go online, if at all, shows that they were able to maintain a flexible online schedule and were free to adjust their schedule to accommodate their personal activities without interference from Defendants. See Ingram, 144 F.3d at 269 (“the undisputed facts show that the deputies could trade shifts to pursue personal activities without interference”). Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 26 of 30 23 4. Plaintiffs Routinely Engaged In Personal Pursuits While Online. Perhaps the most important Ingram factor—the employee’s ability to engage in personal pursuits while on call—is well-established in Defendants’ favor in the underlying record. The test for whether an employee is engaged in personal pursuits is “not whether the employee has ‘substantially the same flexibility or freedom as he would if not on call,’” but “‘whether they actually engage in personal activities during on-call shifts.’” Ingram, 144 F.3d at 269 (quoting Bright, 934 F.2d at 677; Berry v. Sonoma County, 30 F.3d 1174, 1185 (9th Cir.1994)). “The fact that some of [an employee’s] activities have been affected by [an on-call] policy is not sufficient to make the on-call time compensable.” Martin, 968 F.2d at 611. When transportation providers are online, they are free to use their Online Time to pursue any activity of their choosing. (SOF, ¶45). For example, Plaintiff Cherdoud reports that he has fallen asleep while online. (SOF, ¶54). Plaintiff Cherdoud also reported that some transportation providers leave their phone online at the airport and then go home or pursue other personal endeavors while still online on the Uber App (and simultaneously moving up the queue at the airport). (SOF, ¶55). Plaintiff Sabani admits having left his phone online at the airport and going home to sleep while online. (SOF, ¶46). Plaintiff Razak also stated that he has left his phone online in the airport zone and queue and left the airport with a friend. (SOF, ¶56). Sabani acknowledged that he sometimes forgets to go offline, so his phone stays in online mode despite him having no intention on accepting trip requests. (SOF, ¶46). Another transportation provider stated that he is a Certified Public Accountant (CPA), and he goes online while he is in his CPA offices. (SOF, ¶65). While online, he continues doing his CPA work. Id. If he receives a trip request, and he’s not otherwise in a client meeting or busy with something, he will accept the request. Id. Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 27 of 30 24 Plaintiffs testified that they were able to make personal phone calls while online (SOF, ¶¶45, 49-51). Plaintiff Sabani testified that he was able to receive trip requests and to provide rides through his personal Freemo Limo limousine company while online. (SOF, ¶¶13, 45). Plaintiff Sabani also testified that he was able to run his limo company and to distribute trips to other drivers while online. (SOF, ¶53). Plaintiff Cherdoud testified that he provides transportation services outside of the Uber App through Freemo Limo. (SOF, ¶47). Plaintiff Razak testified that he provided trips for Blacklane limousine company. (SOF ¶71). A review of Plaintiff Razak’s Blacklane trip times and the times when he was online on the Uber App appear to show that he provided trips for Blacklane during Online Time. (SOF ¶¶72-76). Plaintiffs Razak and Sabani testified that they chose to go to a protest while online. (SOF, ¶48). Plaintiff Cherdoud also testified that he rejects rides or goes offline based on his personal preferences about whether, where and when to accept trip requests. (SOF, ¶50). Plaintiff Sabani testified that he rejected rides while online if he was too tired and wanted to go home or was on a personal phone call. (SOF, ¶51). Plaintiff Sabani also testified that he advertised his personal Freemo Limo limousine company’s services while online by using the Freemo Limo signature block on e-mails he sent while online. (SOF, ¶52). Based on the indisputable evidence demonstrating the freedom that transportation providers had to actually pursue personal endeavors during Online Time, Online Time is not compensable as a matter of law. See Ingram, 144 F.3d at 269-70 (“Since the deputies were able to engage in numerous personal activities while on-call, this factor weighs in favor of finding the time non-compensable.”); Bright, 934 F.2d at 678 (finding on-call time not compensable where the employee “could go virtually anywhere within approximately twenty minutes of the hospital” as long as he did not partake in “excessive alcohol consumption”); Reimer v. Champion Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 28 of 30 25 Healthcare Corp., 258 F.3d 720, 725 (8th Cir. 2001) (affirming summary judgment where “[s]hort of drinking alcohol or taking mind-altering drugs, [employees] could pursue a virtually unlimited range of activities in town or at home”); Dinges v. Sacred Heart St. Mary’s Hosps., 164 F.3d 1056, 1058 (7th Cir. 1999) (affirming summary judgment where employees’ time could be used effectively for sleeping, eating, and many other activities at home because there was less than a fifty percent chance that the plaintiffs would be called into work). All four of the factors relevant to the determination as to whether on-call time is compensable compel a finding that Plaintiffs’ Online Time is not compensable. Accordingly, even if the Court were to review Online Time under traditional “on call” jurisprudence, the Court should grant summary judgment in favor of Defendants and hold that Online Time is not compensable “hours worked” under the FLSA or PMWA. V. CONCLUSION There is no genuine dispute as to any material fact with respect to the “important” and “potentially dispositive” question of whether Online Time is compensable “hours worked” under the FLSA and PMWA. Defendants respectfully request that the Court grant Defendants’ motion for partial summary judgment and hold that Online Time is not compensable “hours worked” under the FLSA or PMWA as a matter of law. Respectfully submitted, Dated: May 26, 2017 /s/Joshua C. Vaughn Paul C. Lantis, (PA #309240) Wendy Buckingham (PA #320259) LITTLER MENDELSON, P.C. Three Parkway 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102-1321 Telephone: (267) 402-3073 Facsimile: (267) 402-3131 Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 29 of 30 26 PLantis@littler.com Robert W. Pritchard, (PA #76979) Joshua C. Vaughn, (PA #203040) LITTLER MENDELSON, P.C. 625 Liberty Avenue 26th Floor Pittsburgh, PA 15222 Telephone: (412) 201-7628 Facsimile: (412) 774-1957 RPritchard@littler.com JVaughn@littler.com Andrew M. Spurchise (admitted pro hac vice) LITTLER MENDELSON, P.C. 900 Third Avenue 8th Floor New York, NY 10022 Telephone: (212) 583-2684 Facsimile: (212) 832-2719 ASpurchise@littler.com Attorneys for Defendants UBER TECHNOLOGIES, INC and GEGEN, LLC Case 2:16-cv-00573-MMB Document 66-2 Filed 05/26/17 Page 30 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ALI RAZAK, KENAN SABANI and, KHALDOUN CHERDOUD, individually and on behalf of all others similarly situated, Plaintiffs, v. UBER TECHNOLOGIES, INC. and GEGEN LLC, Defendants. : : : : : : : : : : : Case No. 16-0573 Judge Michael M. Baylson DEFENDANTS’ STATEMENT OF UNDIPSUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Defendants Uber Technologies, Inc. and Gegen LLC, by and through its undersigned attorneys, file this Statement of Undisputed Material Facts in Support of their Motion for Partial Summary Judgment: 1. Uber is a technology company that offers a mobile smartphone application to connect riders looking for transportation to independent transportation providers looking for riders (the “Uber App”). Deposition of Jordan Holtzman-Conston (“Holtzman-Conston Dep.”), 11:19-12:2, 12:8-10. 2. Transportation companies and individual transportation providers who wish to provide “black car” limousine services in Philadelphia are required by applicable regulation to do so in connection with an entity licensed by the Philadelphia Parking Authority (PPA). Declaration of Jordan Holtzman-Conston (“Holtzman-Conston Decl.”), ¶3. 3. Gegen is a wholly-owned subsidiary of Uber that holds a certificate of public convenience from (and is licensed by) the PPA to operate as a broker of limousine services. Holtzman-Conston Dep., 11:19-12:2, 12:8-10; 21:11-19. Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 1 of 14 2 4. Qualified transportation companies may enter into an agreement with Gegen to enable them to provide limousine services in Philadelphia. Holtzman-Conston Decl., ¶4. 5. Independent transportation companies are able to use the Uber App to obtain requests to provide limousine services on the UberBLACK product. Holtzman-Conston Decl., ¶5. 6. Independent transportation providers (like Plaintiffs) who operate their own (or affiliate with a) transportation company and who use the UberBLACK product must first enter into an agreement setting forth the terms for using Uber’s software mobile application (the “Uber App”). Holtzman-Conston Decl., ¶6. 7. Some UberBLACK transportation providers operate under the certificate of public convenience held by Gegen, while others operate under a certificate held by other limousine companies licensed by the PPA. Holtzman-Conston Dep., 21:20-22:7; 25:12-17. 8. Plaintiff Sabani signed up to use the Uber App to connect with riders using the UberBLACK product on November 26, 2013. Holtzman-Conston Decl., ¶7. 9. Plaintiff Cherdoud signed up to use the Uber App to connect with riders using the UberBLACK product on December 26, 2013. Holtzman-Conston Decl., ¶8. 10. Plaintiff Razak signed up to use the Uber App to connect with riders using the UberBLACK product on July 8, 2014. Holtzman-Conston Decl., ¶9. 11. Many transportation providers (including, for example, Sabani and Cherdoud) own and operate companies that contract directly with Gegen. Cherdoud Dep., 19:23-20:10 (Milano Limo); Sabani Dep., 10:6-15 (Freemo Limo); Holtzman-Conston Decl., ¶4. 12. The agreement between Defendants and independent transportation providers who operate their own transportation companies provides that transportation providers using the Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 2 of 14 3 UberBLACK product have complete discretion to operate their independent business and to divert their drivers at their discretion. Holtzman-Conston Decl., ¶10; Razak Dep., 37:15-24. 13. Transportation providers, like plaintiffs, can provide transportation services outside of the Uber App. Cherdoud Dep., 21:11-18; Razak Dep., 45:3-18 (acknowledging that his brother receives trip requests through Uber and limousine service Blacklane). For example, Plaintiff Sabani testified that he runs his own limousine company, Freemo Limo, and has up to five other transportation providers driving for his company. Sabani Dep., 10:16-11:1. Sabani also reported personally providing over 100 trips through his company, and admitted that Uber placed no restrictions on his right to receive Freemo Limo trip requests while simultaneously online on the Uber App. Id. Sabani 16:15-20 (over 100 trips), 18:18-19:6 (permitted to provide driving service through his company, Freemo Limo, and never harassed by Uber) 19:2-6 (no restrictions while online). 14. To access the Uber App, transportation providers open the app on their mobile device and log in using their username and password. Holtzman-Conston Dep., 38:17-20. 15. After logging on, transportation providers tap a button to go online to be eligible to receive trip requests. Holtzman-Conston Dep., 39:17-21-40:1. 16. Once a transportation provider taps the go online button, there is nothing else they need to do to receive trip requests. Holtzman-Conston Decl., ¶11. 17. Once online, there is no requirement that the driver be engaged with the Uber App in order to stay online. Holtzman-Conston Dep., 56:3-6; Razak 30:20-31:3 (can go offline forever); Clapp Decl., ¶4 (once online, is free to leave his house, walk away from the Uber App on his phone, or turn off the Uber App and go offline at any time). Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 3 of 14 4 18. While transportation providers may choose to pay attention to the Uber App and accept trip requests while they are online in order to increase their income, transportation providers are not required to do so. Holtzman-Conston Decl., ¶12. 19. Defendants do not implement negative repercussions for a transportation provider who chooses to not go online on the Uber App or who chooses to go offline from the Uber App. Holtzman-Conston Decl., ¶13. 20. When a trip request comes in, the transportation providers’ phone will beep and the screen will flash. Holtzman-Conston Decl., ¶14; Razak Dep., 115:8-16. 21. Trip requests appear on the mobile device with the rider’s name, their star rating, their pickup location, any surge fare in effect, the product that this trip is for, and how long the Uber App estimates it will take for the transportation provider to get to the rider. Holtzman- Conston Dep., 40:18-24; 46:21-47:7. 22. Defendants do not require transportation providers to answer trip requests. Razak Dep., 119:1-9. 23. Transportation providers have a choice to either accept or decline trip requests. Holtzman-Conston Dep., 40:14-17; Sabani Dep., 28:5-11; Razak Dep., 36:23-37:4. 24. Transportation providers may take into account any number of factors (such as the time, location, and passenger rating) in making the decision about whether to accept a trip request. Sabani Dep., 51:21-52:23 (has asked rider where their destination is before the trip starts to make sure they are going to a place he wants to go and would cancel or ask the rider to cancel the trip if they were going in the wrong direction). 25. If a transportation provider wants to accept a trip request, they tap to accept. Holtzman-Conston Dep., 40:18-24. Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 4 of 14 5 26. If a transportation provider does not press the accept trip button within a period of time, it will be deemed rejected by default. Holtzman-Conston Dep., 41:1-5; 45:11-14. 27. If not accepted, the request will then be offered to another online transportation provider. Holtzman-Conston Dep., 41:6-9. 28. If no other transportation provider is available or accepts, the trip request goes unfulfilled. Holtzman-Conston Decl., ¶15. 29. If a transportation provider ignores three trip requests, the Uber App may automatically move the transportation provider offline as a system integrity protection and in an effort to avoid extended wait times for riders who are waiting for a transportation provider to accept the trip request. Holtzman-Conston Dep., 54:5-14; Holtzman-Conston Decl., ¶16. 30. Transportation providers who have been automatically transitioned to offline status may go back online if they wish to do so. Holtzman-Conston Dep., 54:5-14. 31. Transportation providers retain the sole right to determine when, where, and for how long to utilize the Uber App. Cherdoud Dep., 15:8-16; Sabani Dep., 26:18-27:19; Razak Dep., 24:23-25:10, 28:1-29:2, 30:15-31:3. 32. That means that transportation providers choose when to go online and when to go offline. Cherdoud Dep., 15:17-16:3, 80:20-81:3. 33. Transportation providers are not required to remain on Uber’s premises, physically or virtually (i.e., being online) at any time; they have complete control over when their time spent online on the Uber App (“Online Time”) begins and when it ends. Holtzman- Conston Decl., ¶17; Razak Dep., 144:8-11 (can decide when to go offline), 171:8-13 (can go offline anytime he chooses and can stay online as long as he wants). Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 5 of 14 6 34. Transportation providers decide where to actually go to offer their services and to maximize their chances of getting a trip. Cherdoud Dep., 24:23-25:3 (Q: Who decides where you actually go then? Is it you or is it -- A: Of course it’s me, but I keep taking information through Uber App to figure out where is the hotspot.), 26:5-19 (makes the decision where to go); Sabani Dep., 28:2-4, 62:9-21 (chooses to go to airport, because “[t]he airport works the best for me. That’s where I get most of the work.”), 92:12-15 (Uber does not require going to the airport – “It’s my choice.”). 35. In most areas, trip requests are automatically routed to the online transportation provider who is closest to the rider. Holtzman-Conston Decl., ¶18; Cherdoud Dep., 76:18-22. 36. At the airport and train station, there is a “queue” system that routes trips to the next driver in the queue. Holtzman-Conston Decl., ¶19; Sabani Dep., 41:14-23 (acknowledging airport queue). 37. A transportation provider who is online enters the “queue” immediately upon entering the designated airport or train station zone. Holtzman-Conston Decl., ¶20 38. As long as the transportation provider remains in the airport or train station zone, they will move up the queue. Holtzman-Conston Decl., ¶21. 39. At the airport, transportation providers must actually enter the west parking lot (a parking lot that is within the airport zone) to receive a trip request; trip requests are then distributed to the transportation provider who is in the west parking lot based on position in the queue. Id. 40. A transportation provider who is in the airport zone, but outside the west parking lot, could therefore remain online for hours (advancing all the way to first in the queue), despite Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 6 of 14 7 not being in position to even receive (much less accept) trip requests. Holtzman-Conston Decl., ¶22. 41. After a transportation provider accepts a trip request, the transportation provider may cancel the trip at any point. Holtzman-Conston Dep., 64:23-65:11; Razak Dep., 123:4-23 (acknowledging that he cancelled more than one hundred and less than one thousand trips). 42. A transportation provider may even choose to cancel a trip after the rider has entered the vehicle. Holtzman-Conston Dep., 65:12-16. 43. Transportation providers’ accounts are not deactivated or put on hold for rejecting trips or their trip acceptance rate. Holtzman-Conston Dep., 46:6-20; 48:12-19. 44. A transportation provider’s acceptance rate has no effect on his/her ability to provide transportation services using the UberBLACK product. Holtzman-Conston Dep., 48:20- 23. 45. When transportation providers are online, they are free to use their Online Time to pursue any activity of their choosing. Holtzman-Conston Decl., ¶23; Razak Dep., 116:21-117:3 (uses iPhone for personal activities like making personal phone calls while online). For example, if a transportation provider is online, he/she is free to accept and provide ride requests from private clients. Holtzman-Conston Dep., 115:12-116:7; Sabani Dep., 12:24-13:18 (able to receive calls for personal Freemo Limo limousine company while online), 22:20-23:1 (has provided rides to personal Freemo Limo customers while online on Uber App). 46. While online, transportation providers are free to sleep. Sabani Dep., 44:4-17, 126:24-127:3 (would leave phone online at the airport and go home to sleep). Sabani acknowledged that he sometimes forgets to go offline so his phone stays in online mode, even though he does not intend to provide transportation services. Id., 114:21-115:5. Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 7 of 14 8 47. Defendants do not prohibit transportation providers from providing transportation services to others. Cherdoud Dep., 12:11-14. Plaintiff Cherdoud testified that he provides transportation services outside of the Uber App through Freemo Limo. Id., 22:4-24:2. 48. While online, transportation providers are free to attend a protest. Sabani Dep.,102:7-103:4, 106:2-20 (attended January 29th protest with four other UberBLACK transportation providers while online); Razak Dep., 124:6-17 (was online while at protest on January 29 at Philadelphia airport). 49. While online, transportation providers can go into a convenience store (Cherdoud Dep., 18:23-19:2), smoke cigarettes (Id., 58:5-8), and take personal phone calls (Id., 66:18-21). 50. Cherdoud stated that he may reject trip requests or go offline at his discretion (e.g., if they do not want to pick up passengers, if it is late at night, if they want to go home, if they are on a personal phone call, or if the rider has a low rating). Id., 75:14-76:3, 77:16-78:13. 51. Sabani stated that he also rejected rides if he was too tired and wanted to go home, or was on a personal phone call. Sabani Dep., 76:9-12 (go home), 77:9-20 (personal call). 52. While online, transportation providers are free to send e-mails advertising their personal limousine company. Sabani Dep., 67:9-69:4 (uses Freemo Limo signature block on e- mails for advertisement and sends e-mails while online). 53. While online, transportation providers are free to run a personal transportation company and distribute trips to other drivers. Sabani Dep., 19:7-20:11. 54. Plaintiff Cherdoud reports having fallen asleep while online. Cherdoud Dep., 18:2-16. 55. Plaintiff Cherdoud also reports that some transportation providers leave their phone online in the airport zone so they will move up in the queue—without actually waiting at Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 8 of 14 9 the airport. Cherdoud 39:12-40:13. According to Plaintiff Cherdoud, some transportation providers leave their phones online in the airport zone (but outside the west parking lot) then go home or pursue other personal endeavors while still online on the Uber App and moving up the queue at the airport. Id., 40:20-41:18. 56. Plaintiff Razak also stated that he has left his phone online in the airport zone and in the airport queue and left the airport with a friend. Razak Dep., 127:24-128:10. 57. Periodically, Defendants communicate information to transportation providers. Holtzman-Conston Decl., ¶24 58. For example, Defendants may send a message to transportation providers about a local event at a specific location where rider demand may be high, or a map showing areas where riders need drivers most. Holtzman-Conston Dep., 15:3-19, 70:12-23, 74:17-75:9; 93:1-6. 59. It is up to the transportation provider to choose whether to look at the information and to decide whether to use that information in making decisions about when and where to provide transportation services. Holtzman-Conston Decl., ¶25. 60. Transportation providers are free to completely ignore this information. Sabani Dep., 98:13-99:5; Razak 28:11-29:2. 61. Plaintiff Razak admitted that he did not go to all of the places identified by Uber as having potentially high rider demand; rather, he chose where to go. Razak Dep., 101:7-24. For example, he chose between events when there were multiple events and chose to not go to certain events. Id. 62. Cherdoud reports reading these communications “[j]ust to see where I can organize myself, when I can boost my income.” Cherdoud Dep. 24:3-22. Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 9 of 14 10 63. Plaintiff Razak testified that he could decide when he was not going to use the Uber App, but that he would end up not making as much money if he wasn’t online. Razak Dep. 21:14-24. 64. Defendants do not maintain a policy or otherwise impose restrictions on transportation providers while they are online. Holtzman-Conston Decl., ¶26. Defendants do not specify the time and place where transportation providers are required to be when they were online, how long the online period will last, what transportation providers are permitted to do and not do while online, how frequently they must be online, or established any other requirements for the time when Plaintiffs are online on the Uber App. Id. Indeed, transportation providers are not even required to pay attention to their phones or respond to trip requests. Id. 65. One transportation provider testified that he is a Certified Public Accountant (CPA), and he goes online while he is in his CPA offices, performing his CPA work. Clapp Decl., ¶5. While online, he continues doing his CPA work such as tax returns and audits. Id. If he receives a trip request, and he’s not otherwise in a client meeting or busy with something, he may accept the request. Id. 66. One transportation provider stated that Uber does not control him while he is online on the Uber App. Clapp Decl., ¶4. He said he has the right to reject and decline trip requests that he receives from the Uber App without penalty. Id. Uber has never assigned or required him to work in a specific geographical area, and he is free to leave his house and to provide his services wherever and whenever he chooses to. Id. Although he works in King of Prussia, Pennsylvania, he chooses to make myself available in the downtown Philadelphia area where he believes that there is a higher demand for limousine services. Id. Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 10 of 14 11 67. If there are insufficient transportation providers to provide rides, there is nothing Defendants could do to force additional transportation providers to go online on the Uber App. Holtzman-Conston Decl., ¶27. 68. Plaintiff Cherdoud completed approximately 6 trips during the week beginning December 21, 2015. Holtzman-Conston Decl., ¶28. These 6 trips lasted only approximately 2.5 hours, which is approximately 5% of his 49 hours of Online Time that week, and amounts to less than one trip per day. Id. 69. Plaintiff Sabani completed approximately 17 trips over a period of 87.1 hours for the week ending November 16, 2015. Id., ¶29. These trips lasted only slightly over approximately 6 hours, which is only approximately 7.1% of the 87.1 hours he spent online, and amounts to less than 2.5 trips per day. Id. 70. Plaintiff Razak completed approximately 20 trips during the period from November 30, 2015 to December 7, 2015. Id., ¶30. These trips lasted approximately 8 hours, which is only a fraction of the hours he avers to have been online during that period, and amounts to less than 3 trips per day. Id. 71. Plaintiff Razak testified that he provided transportation services for a limousine company called Blacklane. Razak Dep., 40:21-41:7. 72. According to records produced by Plaintiffs, Plaintiff Razak provided a trip for Blacklane on January 18, 2017 at 12:45 p.m. Certificate of Counsel, ¶6, Exhibit 7 (excerpts from Plaintiffs’ document production, bates numbered RAZAK_UBER_PL0006887). The pickup location was The Green 55, Dover, Delaware, 19901 and the drop off was at the Philadelphia International Airport. Id. Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 11 of 14 12 73. According to records produced by Plaintiffs, Plaintiff Razak also provided a trip for Blacklane on January 18, 2017 at 4:15 p.m. Id. The pickup location was the Philadelphia International Airport and the drop off location was Woodside Court 140, Annville, Pennsylvania, 17003. Id. 74. Plaintiff Razak went online on the Uber App on January 18, 2017 at 11:17:47 a.m. and then went offline on January 18, 2017 at 9:41:57 p.m. Holtzman-Conston Decl., ¶32. 75. According to records produced by Plaintiffs, Plaintiff Razak provided a trip for Blacklane on March 22, 2017 at 2:46 p.m. Certificate of Counsel, ¶6, Exhibit 7 (excerpts from Plaintiffs’ document production, bates numbered RAZAK_UBER_PL0006911). The pickup location was the Philadelphia International Airport and the drop off location was the Philadelphia Marriott Downtown at 1201 Market Street, Philadelphia, PA 19107. Id. 76. Plaintiff Razak went online on the Uber App on March 22, 2017 at 1:38:29 p.m. and then went offline at 8:58:48 p.m. Holtzman-Conston Decl., ¶33. 77. Kevin Bryant is an independent transportation provider who receives leads from the UberBLACK product in Philadelphia. Holtzman-Conston Decl., ¶34. 78. On March 26, 2015, Mr. Bryant went online on the Uber App for the UberBLACK product at 6:40:19 p.m., went offline at 6:54:48 p.m., went online at 7:37:09 p.m., accepted a trip request at 7:43:09 p.m., picked up the rider at 7:51:14 p.m., and completed the trip at 8:01:42 p.m. Holtzman-Conston Decl., ¶35. 79. Kevin Bryant also provides transportation services using the Lyft App. Certificate of Counsel, ¶¶3-5, Exhibits 1 (subpoena to Lyft), 2 (Lyft letter responding to subpoena, including excerpts from Kevin Bryant’s login and ride history records), 3 (Declaration of Custodian of Records). According to records produced by Lyft, on March 26, 2015, Mr. Bryant Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 12 of 14 13 logged onto the Lyft App at 6:40 p.m., finished a ride request at 6:53 p.m., and logged off at 7:44 p.m. Id. 80. On March 31, 2015, Mr. Bryant went online on the Uber App at 6:22:39 p.m., accepted a trip on the UberBLACK product at 6:35:14 p.m., began the trip at 6:38:15 p.m., and completed the trip at 6:47:44 p.m. Holtzman-Conston Decl., ¶36. 81. According to records produced by Lyft, on March 31, 2015, Mr. Bryant finished a Lyft trip at 6:39 p.m. Certificate of Counsel, ¶2 (excerpts from Kevin Bryant’s login and ride history records). Respectfully submitted, Dated: May 26, 2017 /s/Joshua C. Vaughn Paul C. Lantis, (PA #309240) Wendy Buckingham (PA #320259) LITTLER MENDELSON, P.C. Three Parkway 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102-1321 Telephone: (267) 402-3073 Facsimile: (267) 402-3131 PLantis@littler.com Robert W. Pritchard, (PA #76979) Joshua C. Vaughn, (PA #203040) LITTLER MENDELSON, P.C. 625 Liberty Avenue 26th Floor Pittsburgh, PA 15222 Telephone: (412) 201-7628 Facsimile: (412) 774-1957 RPritchard@littler.com JVaughn@littler.com Andrew M. Spurchise (admitted pro hac vice) LITTLER MENDELSON, P.C. 900 Third Avenue 8th Floor New York, NY 10022 Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 13 of 14 14 Telephone: (212) 583-2684 Facsimile: (212) 832-2719 ASpurchise@littler.com Attorneys for Defendants UBER TECHNOLOGIES, INC and GEGEN, LLC Case 2:16-cv-00573-MMB Document 66-3 Filed 05/26/17 Page 14 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ALI RAZAK, KENAN SABANI and, KHALDOUN CHERDOUD, individually and on behalf of all others similarly situated, Plaintiffs, v. UBER TECHNOLOGIES, INC. and GEGEN LLC, Defendants. : : : : : : : : : : : Case No. 16-0573 Judge Michael M. Baylson INDEX OF EXHIBITS IN SUPPORT OF DEFENDANTS’ CONCISE STATEMENT OF MATERIAL FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Exhibit Description 1 Jordan Holtzman-Conston Deposition Excerpts 2 Declaration of Jordan Holtzman-Conston 3 Khaldoun Cherdoud Deposition Excerpts 4 Kenan Sabani Deposition Excerpts 5 Ali Razak Deposition Excerpts 6 Declaration of George Clapps 7 Certification of Counsel Case 2:16-cv-00573-MMB Document 66-4 Filed 05/26/17 Page 1 of 1 Case 2:16-cv-00573-MMB Document 66-5 Filed 05/26/17 Page 1 of 15 Case 2:16-cv-00573-MMB Document 66-5 Filed 05/26/17 Page 2 of 15 Case 2:16-cv-00573-MMB Document 66-5 Filed 05/26/17 Page 3 of 15 Case 2:16-cv-00573-MMB Document 66-5 Filed 05/26/17 Page 4 of 15 Case 2:16-cv-00573-MMB Document 66-5 Filed 05/26/17 Page 5 of 15 Case 2:16-cv-00573-MMB Document 66-5 Filed 05/26/17 Page 6 of 15 Case 2:16-cv-00573-MMB Document 66-5 Filed 05/26/17 Page 7 of 15 Case 2:16-cv-00573-MMB Document 66-5 Filed 05/26/17 Page 8 of 15 Case 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