On May 2, 2014, in O'Connor v. Uber Technologies, Inc., the US District Court for the Northern District of California held that FRCP 23(d) gives district courts the authority to regulate communications with potential future class members to prevent the defendant from limiting the size and scope of the class (No. 13-cv-3826, (N.D. Cal. May 2, 2014).

Uber licenses a software application for mobile devices that connects drivers with customers looking for on-demand car services. Uber advertises to its riders that gratuity is included in the total cost of the service. The plaintiffs, former Uber drivers, filed this putative class action against Uber in August 2013. They alleged that Uber does not remit the full amount of the gratuity to the drivers.

Similar suits have previously been filed by Uber drivers in Massachusetts and Illinois. In July 2013, while those earlier cases were pending, Uber informed its drivers that it would require them to approve new agreements, including a new licensing agreement that included an arbitration provision requiring all disputes to be resolved through binding arbitration rather than in a court of law. This provision effectively prevented drivers from participating in the pending class actions. Drivers were given 30 days to opt out of the arbitration provision, but were required to hand-deliver or send via overnight mail to Uber's general counsel their clear intent to opt out.

The plaintiffs moved for a protective order striking the arbitration clause or, alternatively, requiring Uber to:

The court granted the motion in part, ordering Uber to give clear notice of the arbitration provision and its effect on participation in the class action, as well as to provide reasonable means of opting out. The court held that this requirement applies to new drivers as well as past and current drivers, and that Uber was forbidden from issuing licensing agreements that waive putative class members' rights until the court approved their revised procedures.

Uber moved for reconsideration of the ruling, arguing that the court exceeded its authority under FRCP 23(d) by regulating communications with prospective drivers who were not at the time members of the putative class. The court denied Uber's motion.

FRCP 23(d) provides that the court may issue orders which protect class members by imposing notice requirements and other procedural safeguards. The purpose of the provision is to ensure the integrity of the class certification process.

While acknowledging this general principle, Uber argued that people who have not yet driven for it are beyond the scope of FRCP 23(d) because they do not yet meet the putative class definition. The court rejected this interpretation. It held that FRCP 23(d) encompasses communications with "future and potential putative class members." Without the court's intervention, Uber could unilaterally limit the size of the class through its actions, thereby undermining the fair administration of justice.

The court was not persuaded by seemingly contrary holdings from the US District Courts for the Southern District of New York and Southern District of California. Those decisions did not, the court asserted, explain why a court could not regulate communications with potential future class members where the integrity of the class action process was undermined by the defendant's communications.

Finally, the court considered the parties' proposed corrective notices to potential future class members and found them both inadequate. It therefore ordered the parties to meet and confer about an acceptable notice. The court reiterated that, until it approves a corrective notice, Uber may not issue any license agreement containing an arbitration provision that waives potential class members' rights in the action.