SAN FRANCISCO (CN) - The attorney for a class of Uber drivers suing to be treated as employees asked a federal judge not to throw out the case because of complications in calculating damages.
"We think it's superior for the court to allow the drivers to pursue indisputably common damages. Otherwise it's throwing the baby out with the bathwater," attorney Shannon Liss-Riordan told U.S. District Judge Edward Chen at a class certification motion hearing Tuesday.
The class is also looking for reimbursement of vehicle, phone and other claimed work-related expenses, prompting Chen to question whether the case has gotten too unmanageable to move forward.
Liss-Riordan said the class is willing to forgo certain damages, like the cost of Sirius XM radio, and the mints and bottled water they feel compelled by Uber to have on hand for passengers.
"The predominant damages that are going to be common to all class members are vehicle and phone expenses because those are things you absolutely need to drive for Uber," Liss-Riordan said. "While some drivers think they are owed reimbursement for other expenses, there are a variety of ways the court could handle that."
She suggested the court hold a minitrial on those miscellaneous damages later on, saying, "My big-picture argument is that it is very common for courts to certify a class for liability purposes, then have a trial on how liability has been established, then pick up on how to handle damages should there be a finding of liability."
Uber's lead attorney Theodore Boutrous said the plaintiffs would be giving up a lot of potential damages by agreeing to forgo their claims to reimbursement for bottled water and mints, which would not be tolerable in an individual case.
"This is giving away half the store," he said, joking, "I should be representing the plaintiffs."
Moreover, he added, it would be impossible to separate out what expenses drivers can claim they incurred while on the job - whether they could be considered on the clock only if passengers are in the car, or if they could claim expenses for the time spent driving around looking for fares.
"What we're hearing today is speculation, guesswork," Boutrous said. "Deciding something like that in the abstract would be intruding on the normal, substantive rights Uber would have in this case. The more this is complicated, the more impossible it will be to have a fair trial."