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Partial Certification in Uber Tip Class Action

SAN FRANCISCO (CN) - A federal judge partially certified a class of Uber customers who claim the company misrepresented who would receive its 20 percent surcharge.

Lead plaintiff Caren Ehret sued the ride-share service in January 2014, claiming that Uber represents on its website and other marketing materials that "gratuity will automatically be added at a set percentage of the metered fare."

But Uber "does not remit the full amount of gratuity represented to consumers to the taxi driver/owner and/or company actually providing the transportation service," and instead "keeps a substantial portion of this additional charge for itself," Ehret claims.

After an October hearing , U.S. District Judge Edward Chen certified Ehret's proposed class in part.

Chen certified a class defined as "all individuals who received Uber's email with the representation that the 20 percent charge would be gratuity only, who then arranged and paid for taxi rides through Uber's service from April 20, 2012 to March 25, 2013."

The judge took issue with "whether classwide exposure can be inferred where Uber's alleged misrepresentations regarding the 20 percent gratuity were primarily on its website, blog, and email messages, rather than on the Uber app itself."

Although Ehret did not dispute that Uber's app did not contain the alleged misrepresentation, she contended that "exposure can be inferred in the instant case because there was a single, uniform misrepresentation by Uber that the 20 percent charge was gratuity, and that the misrepresentation was targeted towards its intended audience," according to Chen's ruling.

"The court agrees with plaintiff that there was a uniform and consistent misrepresentation throughout the class period," Chen said.

But "although there may have been a consistent misrepresentation, there is insufficient evidence that all customers during the class period were likely exposed to the misrepresentation," Chen said.

"The lack of classwide exposure is suggested by the email complaints that Uber provides, several of which express surprise that tip is being charged at all given that other Uber services do not charge for tip," Chen said.

"The burden was on plaintiff to prove sufficient exposure. To the extent that plaintiff seeks to include in the class all customers who may have been exposed to the website and blog posts, plaintiff failed to carry that burden."

Chen added that "just because the information was available on the website does not necessarily imply that visitors would likely have seen it, especially when there was a good deal of other information on the website."

The plaintiffs' lead attorney did not immediately respond to an email requesting comment on Monday afternoon.

Uber's counsel declined to comment.

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