UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL R. RATTAGAN, No. 20-16796 Plaintiff-Appellant, D.C. No. v. 3:19-CV-01988-EMC UBER TECHNOLOGIES, ORDER CERTIFYING INC., QUESTION TO THE Defendant-Appellee. SUPREME COURT OF CALIFORNIA

Filed December 6, 2021

Before: Mary H. Murguia, Chief Judge, and J. Clifford Wallace and Morgan Christen, Circuit Judges. 2 RATTAGAN V. UBER TECHNOLOGIES

SUMMARY *

California Law

The panel certified to the Supreme Court of California the following question:

Under California law, are claims for fraudulent concealment exempted from the economic loss rule?

ORDER

We are asked to determine whether fraudulent concealment claims are exempt from the economic loss rule under California law. This central question of state law is determinative of the instant case, and there is no controlling precedent in the California Supreme Court’s decisions. Cal. R. Ct. 8.548(a). Therefore, we respectfully certify this question of law to the California Supreme Court pursuant to California Rule of Court 8.548.

I. Factual Background

This case arises out of Uber Technologies, Inc.’s (“Uber”) launch of its ridesharing platform in Argentina. In 2013, two of Uber’s wholly owned Dutch subsidiaries retained Plaintiff-Appellant, Michael Rattagan, a corporate attorney in Argentina, to provide certain legal services and

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. RATTAGAN V. UBER TECHNOLOGIES 3 serve as the Dutch entities’ legal representative in Buenos Aires. These Dutch entities would be the shareholders of a new Uber subsidiary in Argentina. In 2015, Uber representatives from the company’s headquarters in San Francisco allegedly assumed responsibility for communicating with Mr. Rattagan about the launch.

In April 2016, Uber launched its platform in Argentina. According to Mr. Rattagan, however, Uber did so before its Argentine subsidiary was fully formed or registered with the proper tax authority. Mr. Rattagan alleges that despite knowing that Mr. Rattagan, as the Dutch entities’ legal representative, could be subject to personal liability for Uber’s violations of Argentine law, Uber concealed its launch plans from him.

Within days of the launch, law enforcement authorities raided Mr. Rattagan’s office and the homes of his business colleagues. The raids occurred in connection with a charge that Mr. Rattagan, as an Uber representative, was illegally using public space for commercial gain. Mr. Rattagan also alleges that his offices were surrounded by protestors and that he and his firm received negative press in the news. Mr. Rattagan promptly requested that the Dutch entities remove him as legal representative, but the change did not occur until at least two months after the launch. He contends that, by this time, the damage to his reputation already was done. Mr. Rattagan later was charged with aggravated tax evasion for his perceived involvement with the Uber launch. The investigation received significant media attention, which Mr. Rattagan asserts harmed his reputation in his community.

In the operative complaint, Mr. Rattagan alleged claims of negligence, breach of the implied covenant of good faith and fair dealing, fraudulent concealment, and aiding and 4 RATTAGAN V. UBER TECHNOLOGIES abetting fraudulent concealment. Applying California law, the district court concluded that Mr. Rattagan’s negligence and breach of the implied covenant claims were time barred. The district court also held that the fraudulent