Mumin v. Uber Technologies, Inc. (239 F. Supp. 3d 507, 2017)

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiffs in these two related putative class actions assert claims under New York Labor Law (“NYLL”) and other New York statutory and common law against Uber Technologies, Inc. and a number of related or affiliated entities (collectively, “Uber”). In the first action (the “Mumin Action”), Plaintiffs Manzoor Mu-min and Victor Mallh (the “Mumin Plaintiffs”) bring their action against Defendants Uber Technologies, Inc., Rasier, LLC, and John Does 1-10. (Mumin 3d Am. Compl. (“Mumin Compl.”) (Dkt. 22 in No. 15-CV-6143).) In the second action (the “Ortega Action”), Plaintiffs Jose Ortega and Joce Martinez (the “Ortega Plaintiffs,” and together with the Mumin Plaintiffs, “Plaintiffs”) have filed suit against Defendants Uber Technologies, Inc., Rasier, LLC, Uber USA LLC, Uber Transportation LLC, and John Doe “Uber Affiliates.” (Ortega Am. Compl. (“Ortega Compl”) (Dkt. 16 in No. 15-CV-7387).)

Before the court are Uber’s motions to (1) compel arbitration as to Plaintiff Victor Mallh in the Mumin Action and Plaintiff Joce Martinez in the Ortega Action; and (2) dismiss the operative complaints in both actions pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). (See Mumin Defs.’ Mot. to Compel Arbitration (Dkt. 28 in No. 15-CV-6143); Ortega Defs.’ Mot. to Compel Arbitration (Dkt. 19 in No. 15-CV-7387); Mumin Defs.’ Mot. to Dismiss (Dkt. 26 in No. 15-CV-6143); Ortega Defs. Mot. to Dismiss (Dkt. 22 in No. 15-CV-7387).) Because of the substantial similarity in facts and the legal issues raised, the court will address these motions together in this Memorandum and Order.

For the following reasons, the court GRANTS Uber’s motions to compel Plaintiffs Mallh and Martinez to arbitrate their claims. The court also GRANTS IN PART and DENIES IN PART Uber’s motions to dismiss Plaintiffs’ operative complaints.

I. BACKGROUND

A. Facts as Alleged in the Operative Complaints

1. General Allegations

Uber is a ride-sharing service that uses a mobile application to connect its drivers to potential passengers. (Mumin Compl. ¶¶ 3, 16; Ortega Compl. ¶ 25.) Uber’s mobile application allows a rider to request a ride by inputting a pick-up location and a destination. (Ortega Compl. ¶ 25.) The application matches the rider with one of Uber’s available drivers in the vicinity and then provides the rider with an estimated fare. (Id.) If the rider accepts the estimated fare, then the available Uber driver is dispatched to pick up the rider. (Id.) At the end of the ride, the passenger completes the transaction by paying Uber through the mobile application. (See id.; see also Mumin Compl. ¶ 46.) Uber pays drivers, on a weekly basis, their share of the fares earned for their rides. (See Mumin Compl. ¶ 46; Ortega Compl. ¶¶ 26, 27.)

Plaintiffs allege that Uber misclassifies its drivers as independent contractors rather than employees in order to avoid New York Labor Raw requirements, such as minimum wage, overtime pay, and expense reimbursement. (Mumin Compl. ¶¶ 4, 41; Ortega Compl. ¶ 57.) They assert that Uber “exercised control over their wages, their hours, and their working conditions,” and “regulate[d] every aspect of Uber Drivers’ job performance.” (Mumin Compl. ¶¶ 25-26; see also Ortega Compl. ¶ 58.) Uber controls the qualifications of the drivers it chooses to hire, requiring prospective drivers to submit to background checks and to complete an in depth training process. (Mumin Compl. ¶¶ 27, 43-44; Ortega Compl. ¶¶ 28, 59-68.) For example, potential drivers must watch an instructional video detailing Uber’s rules for how drivers are to interact with riders. (Mumin Compl. ¶¶ 44; Ortega Compl. ¶¶ 62-65.) The video allegedly directs drivers “to stock their cars with water, snacks, and phone chargers for use by the customer,” and “to dress in a certain way that would convey the message that the driver is the rider’s personal chauffeur.” (Ortega Compl. ¶ 65.) Uber also allegedly requires its drivers to pass a “City Competency Test” before they can begin working. (Id. ¶¶ 66-67.) In addition, Uber drivers must register their vehicles with Uber, which bars the use of vehicles over ten years old. (Mumin Compl. ¶ 28.)

Once a driver begins working for Uber, his or her performance is monitored through a five-star rating system whereby riders are asked to rate the driver at the end of each trip. (See Mumin Compl. ¶ 45; Ortega Compl. ¶ 69.) Drivers must maintain an average customer rating of 4.5 stars out of 5. (See Mumin Compl. ¶ 45; Ortega Compl. ¶ 69.) If drivers’ customer rating falls below the minimum threshold, they have 30 days to improve their rating. (See Mumin Compl. ¶ 45; see also Ortega Compl. ¶¶ 69-72.) Failure to increase the rating to the required 4.5 stars will result in the deactivation of a driver in Uber’s mobile application, effectively terminating the parties’ working relationship. (Mumin Compl. ¶ 45; Ortega Compl. ¶ 72.)

Plaintiffs allege that they incurred weekly expenses such as fuel, insurance, finance payments for their vehicles, as well as cleaning, tolls, and car maintenance costs, while driving for Uber. (Mumin Compl. ¶¶10, 15; Ortega Compl. ¶ 28.) Uber did not reimburse Plaintiffs for then-expenses. (Mumin Compl. ¶ 11; Ortega Compl. ¶28.) Plaintiffs additionally allege that Uber shifts the burden of its own expenses onto the drivers through its $1 per ride “safe ride” fee. (Mumin Compl. ¶ 33; Ortega Compl. ¶¶ 27-28.) Uber supposedly uses this fee to pay for background checks, driver safety education, and the development of safety features in its mobile application. (Mumin Compl. ¶ 33; Ortega Compl. ¶ 28.)

Plaintiffs also take issue with Uber’s policy on gratuities. Uber directs its drivers to decline any tips offered by their riders. (Mumin Compl. ¶ 38; Ortega Compl. ¶¶ 75-76 (noting that Uber permits drivers to accept gratuity only after a rider offers it three times).) Uber allegedly represents to riders that gratuity is included in the cost of the fares. (Mumin Compl. ¶ 37; Ortega Compl. ¶ 77.) Uber’s website advises riders that “there’s no need to tip.” (Mumin Compl. ¶ 69; Ortega Compl. ¶ 77.)

Plaintiffs further allege that Uber misled them in marketing materials designed to recruit prospective drivers. (Mumin Compl. ¶¶ 34-35; Ortega Compl. ¶.¶1 98-99.) The details of the deceptive advertisements vary between the two Complaints, and are described in greater detail below.

2. Allegations Specific to the Mumin Action

Plaintiff Manzoor Mumin allegedly drove for Uber from November 2011 to July 2013, while Plaintiff Victor Mallh began driving for Uber in June 2015 and continues to do so. (Mumin Compl. ¶¶ 8, 13.) Mumin worked an estimated 55 hours per week as an Uber driver, and Mallh works 70 hours per week. (Id. ¶¶ 9, 14.) Mumin alleges that he earned approximately $1,100 a week before taking into account weekly expenses of about $766, and Mallh states that he earns $1,400 each week while incurring $900 in weekly expenses. (Id. ¶¶ 10, 15.) After deducting his weekly expenses, Mumin calculates that his effective hourly wage was $6.07. (Id. ¶ 10.) Mallh similarly estimates his effective wage to be $7.14; (Id. 15.) During Mumin’s time with. Uber, the minimum wage in New York was $7.25 and later $8.00 per hour. (Id. ¶ 10.) The minimum wage is $9.00 an hour for the time that Mallh drove for Uber. (Id. ¶ 5.)

The Mumin Plaintiffs further" allege that Uber’s drivers are required to log a certain number of hours driving or they risk deactivation. (Id. ¶ 45.) Relatedly, drivers who, accept less than 90% of the ride requests sent to them through the Uber mobile application risk temporary deactivation. (Id, ¶ 6l (including screenshots of the Uber application in which a driver was deactivated for 24 hours for accepting less than 90% of the ride requests and, separately, an Uber recommendation to its drivers that they should accept' at least 80% of trip requests).) Drivers are also prohibited from soliciting or accepting requests for future rides from their Uber passengers outside of the Uber mobile application. (Id ¶ 47.)

As to gratuity, the Mumin Complaint includes specific allegations that up until the end of 2012, Uber’s website contained statements such as “There’s no need to hand your driver any payment and the tip is included,” and “Please thank your driver, but tip is already included.” (Id. ¶ 69.) Although Uber revised its website in 2013 to state only that “there’s no need to tip,” Uber has on occasion continued to represent to passengers that “tip [is] included” as late as April 2015. (Id. ¶¶ 69-70.) The Mumin Plaintiffs assert that Uber’s “there’s no need to tip” statement harmed its drivers by depriving them of tips that they otherwise would have received. (Id. ¶ 40.)

Finally, the Mumin Plaintiffs assert that Uber misled its drivers by claiming that “drivers can earn $2,000 a week by driving for Uber.” (Id. ¶ 34 (including a screenshot of an Uber advertisement which states: “Depending on your market, it is easy to make $2,000 a week driving for uber”).) The Mumin Plaintiffs argue that-.they did not earn this “guaranteed ... pay,” despite working over 40 hours a week. (Id.) They further assert that,- even if $2,000 a week in gross income is possible, the advertisement is deceptive because- it does not account for expenses, which in their case reduce their hourly wage below New York’s minimum wage. (Id. ¶ 35.)

3. Allegations Specific to the Ortega Action

The Ortega Plaintiffs are current Uber drivers. (Ortega Compl. ¶¶ 34, 50.) Plaintiff Jose Ortega became an Uber driver around August 2014, after seeing Uber advertisements that contained claims that its drivers would make- certain, guaranteed income. (Id. ¶¶ 32-33.) Ortega alleges that he works 6 days a week on average, for 10 to 12 hours per day, or approximately 60 to 72 hours per week. (Id. ¶ 36.) He receives gross weekly wages that range from $600 to $1,000 a week, and incurs “hundreds of dollars each week” in work-related expenses. (Id. ¶¶40, 42-43.) Plaintiff Joce Martinez similarly applied to be an Uber driver around August 2014. (Id. ¶49.) Martinez was allegedly induced to join Uber after seeing advertisements that claimed drivers would earn $60,000 in their first year. (Id. ¶¶ 48-49.) Martinez alleges that he works an average of 5 to 6 days a week for 5 to 10 hours per day, or approximately 25 to 60 hours per week. (Id. ¶ 50.) He receives gross weekly wages that range from $700 to $1,000' a week, and incurs “hundreds of dollars each week” in expenses related to driving for Uber. (Id ¶¶ 52, 54-55.)

The Ortega Plaintiffs allege that Uber not only penalizes drivers who receive poor customer ratings, but also provides certain benefits to drivers with high customer ratings, such as discounts to certain retailers and premier driving assignments, including long-distance rides and the ability the work in exclusive locations. (Id. ¶¶ 72-73.)

On the issue of gratuities, the Ortega Plaintiffs assert that the custom in New York City is to tip taxi drivers 18-22% of the ’ full fare. (Id. ¶ 79.) They point to Uber’s alleged representation that tip is included in the fare and argue that a portion of the fare charged to a rider is a gratuity, which Uber withholds' from its drivers in violation of New York law. (Id ¶¶ 80-82.)

Finally, the Ortega Plaintiffs claim that Uber’s marketing prominently states that drivers can make “$5,000 Guaranteed.” (Id. ¶ 98.) Their Complaint includes one example of these allegedly misleading advertisements, which states “Drive & Make $5,000 Guaranteed, during your first month,- Go to uber.eom/5000.” (Id. ¶ 147.) The Ortega Plaintiffs contend that Uber used this and similar offers of guaranteed compensation to induce them to work for Uber. (Id. ¶ 146.)

B. Additional Factual Allegations

In support of its motions to compel arbitration against Plaintiffs Mallh and Martinez, Uber submitted declarations by one of its operation specialists, whd reviewed Uber’s business records and was familiar with the process an individual must go through to become an Uber driver. (Decl. of Michael Colman (“Mumin Colman Decl.”) (Dkt. 30 in N6. ,15-CV-6143); Decl. of Michael Colman (“Ortega Colman Decl.”) (Dkt. 21 in No. 15-CV-7387).)

The operation specialist represented that a prospective driver cannot begin using Uber’s mobile application to connect to ■potential riders until the driver agrees to a service agreement with Uber. (Mumin Col-man Decl. ¶ 7; Ortega Colman Decl. ¶ 7.) A hyperlink to an electronic version of the operative agreement is available when the driver first opens Uber’s mobile application. (Mumin Colman Decl. ¶8; Ortega Colman Decl. ¶8.) This initial screen is titled “TERMS AND CONDITIONS” and states near the top “TO GO ONLINE, YOU MUST REVIEW ALL THE DOCUMENTS BELOW AND AGREE TO THE CONTRACTS BELOW.” (Ex. A to Mumin Colman Deck; Ex. A to Ortega Colman Decl.) At the bottom of the screen, below hyperlinks to the operative agreement and other addenda, there is a button labeled “YES, I AGREE.” (Ex. A to Mumin Col-man Deck; Ex. A to Ortega Colman Deck) Above this button is the statement “By clicking below, you represent that you have reviewed all the documents above and that you agree to all the contracts above.” (Ex. A to Mumin Colman Deck; Ex. A to Ortega Colman Deck) A potential driver cannot advance past this initial screen unless . he or she selects the “YES, I AGREE” button. (Mumin Colman Decl. ¶8; Ortega Colman Decl. ¶ 8.) Once this button is selected, a new screen pops up on the mobile application that asks the user to “PLEASE CONFIRM THAT YOU HAVE REVIEWED ALL THE DOCUMENTS AND AGREE TO ALL THE NEW CONTRACTS.” (Ex. B to Mumin Colman Decl.; Ex. B to Ortega Colman Decl.) The driver may select either “NO” or “YES, I AGREE.” (Ex. B to Mumin Colman Deck; Ex. B to Ortega Colman Decl.) Only after a driver confirms acceptance of the terms and conditions will the driver be granted access to the rest of the mobile application, allowing the driver to begin connecting with riders. (Mumin Colman Decl. ¶8; Ortega Colman Decl. ¶ 8.) The agreement that the driver accepted is available for review at any time through the Driver Portal of the mobile application. (Mumin Colman Decl. ¶8; Ortega Colman Decl. ¶8.) Uber periodically revises its agreements and, when it does, drivers must repeat these same steps to accept the new agreement. (Mumin Colman Decl. ¶ 9; Ortega Colman Decl. ¶9.) A driver is prompted to review the revised documents and must accept and then confirm their acceptance of the new agreement in order to receive continued access to Uber’s mobile application. (Mumin Colman Decl. ¶ 9; Ortega Colman Decl. ¶ 9.)

At the time Plaintiff Victor Mallh initiated the process to become an Uber driver, the operative service agreement was the April 3, 2015, Transportation Company Agreement (the “April 2015 Agreement”). (Mumin Colman Decl. ¶ 11; see also April 2015 Agreement (id., Ex. C).) Mallh accepted the April 2015 Agreement on June 9, 2015, and began driving for Uber. (Mu-min Colman Decl. ¶ 11.) On December 14, 2015, Uber presented Mallh with a revised agreement, the December 11, 2015, Technology Services Agreement (the “December 2015 Agreement”), through the mobile application. (Id. ¶ 12; see also December 2015 Agreement (id., Ex. D).) Mallh accepted the December 2015 Agreement. (Mumin Colman Decl. ¶ 12.)

Plaintiff Joce Martinez began the process to become an Uber driver in August 2014, when the operative agreement was the June 21, 2014, Software License Agreement (the “June 2014 Agreement”). (Ortega Colman Decl. ¶ 11; see also June 2014 Agreement (id., Ex. Q.) Martinez accepted the June 2014 Agreement on August 6, 2014. (Ortega Colman Decl. ¶ 11.) Uber presented Martinez with a revised agreement, the November 10, 2014 Transportation Company Agreement (the “November 2014 Agreement”), which Martinez accepted on February 28, 2015. (Id. ¶ 12; see also November 2014 Agreement (id. Ex. D).) Uber later provided Martinez with another revision, the April 2015 Agreement, and Martinez accepted its terms on October 17, 2015. (Ortega Colman Decl. ¶ 12.) The last revised agreement with which Martinez was presented was the December 2015 Agreement. (Id. ¶ 13.) He accepted the agreement on December 12, 2015. (Id.)

Each of the Uber agreements Plaintiffs Mallh and Martinez agreed to contained a substantially similar arbitration clause. (See, e.g., December 2015 Agreement § 15.3.) Arbitration is not mandatory: a driver may opt out of arbitration within 30 days of accepting the underlying agreement. (See, e.g., id. § 15.3(viii).) A driver opts out of arbitration by notifying Uber in writing of his or her intent to do so by email, a nationally-recognized delivery service such as U.P.S., or hand delivery. (See, e-g-, id.)

Plaintiff Mallh did not opt out of the arbitration provision of either the April 2015 Agreement or the December 2015 Agreement. (Mumin Colman Decl. ¶ 14.)

Plaintiff Martinez did not opt out of arbitration for the June 2014 Agreement or the November 2014 Agreement. (Ortega Colman Decl. ¶ 16.) He did attempt to opt out of arbitration a week after his receipt of the April 2015 Agreement by a letter drafted by Martinez’s counsel and delivered to Uber via email and U.P.S. delivery. (Decl. of Joce Martinez (Dkt. 26 in No. 15-CV-7387) ¶¶ 7-11.) Uber claims that this attempted opt-out was invalid because a provision of the November 2014 Agreement stated that “[u]nless changes are made to the arbitration provisions herein, [Martinez] agrees that modification of this Agreement does not create a renewed opportunity to opt out of arbitration.” (November 2014 Agreement § 14.1.) The arbitration provision did not change between the November 2014 Agreement and the April 2015 Agreement. (Ortega Colman Decl. ¶ 16.) Martinez disputes this contention, and states that his opt-out was “retroactive and prospective.” (Decl. of Joce Martinez ¶ 12.) After the April 2015 Agreement, Martinez agreed to one additional revised contract with Uber, the December 2015 Agreement. (Ortega Colman Decl. ¶ 16.) The arbitration provision in the December 2015 Agreement was modified, and thus Uber agrees Martinez could have opted out of arbitration within 30 days of agreeing to this revised contract. (See id.) However, Martinez did not opt out of the arbitration provision in the December 2015 Agreement. (Id.)

The arbitration clause in each of the aforementioned agreements contained similar language regarding its scope. The operative provision (the “Arbitration Provision”) in the December 2015 Agreement, the latest agreement agreed to by Mallh and Martinez, provides that:

Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration, with the exception of proceedings that must be exhausted under applicable law before pursuing a claim in a court of law or in any forum other than arbitration. Except as it otherwise provides, this Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative (non-PAGA) action. Except as provided in Section 15.3(v), below, regarding the Class Action Waiver, such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge.... Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to all disputes between You and Uber, ... including but not limited to any disputes arising out of or related to this Agreement and disputes arising out of or related to Your relationship with Uber, including termination of the relationship....

(December 2015 Agreement § 15.3(i) (underlining added, bold in original).) This agreement also includes a- “Class- Action Waiver,” which states:

You and Uber agree to resolve any dispute that is in arbitration on an individual basis only, and not on a class or collective action basis (“Class Action Waiver”). The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The Arbitrator shall have no authority, to consider or resolve any claim or issue any relief on a class, collective, or representative basis. Notwithstanding any other provision of this Agreement, the Arbitration Provision or the JAMS Streamlined Arbitration Rules & Procedures, disputes regarding the enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent .jurisdiction and not by an arbitrator.

(Id. § 15.3(v) (underlining added, bold in original).)

II. PROCEDURAL HISTORY

. The Mumin Plaintiffs originally filed their action in the Supreme Court of New York, Kings County, but it was removed by Uber on October 26, 2015, on the basis of diversity of citizenship and under the Class Action Fairness Act. (See Not. of Removal (Dkt. 1 in No, 15-CV-6143).) The operative complaint in this action is the Third Amended Class Action Complaint, filed on March 18, 2016. (Mumin Compl.) The Mumin Plaintiffs assert the following claims, all under New York law: (1) violations under the New York Labor Law, including (a) unlawfully retaining gratuities, (b) failure to keep required payroll records,, and (c) failure to pay minimum wages; (2) tortious interference with a contract and business relations; (3) breach of contract; (4) unjust enrichment; (5) conversion; (6) fraud and misrepresentation; and (7) promissory estoppel. (Id. ¶¶ 59-105.)

The Ortega Plaintiffs filed their action in this court on December 29,2015. The operative complaint is the First Amended Class Action Complaint, filed on April 25, 2016. (Ortega Compl.) This action was initially before Judge I. Leo Glasser of this court but, on March 9; 2016, the case was reassigned to the undersigned as related to the Mumin Action. (Mar. 9, 2016, Order in No. 15-CV-7387.) The Ortega Plaintiffs assert the following claims, all under New York law: (1) violations under the New York Labor Law, including (a) unlawfully retaining gratuities, (b) failure to pay spread-of-hour wages, (c) illegal deductions of gratuities and wages, (d) failure to keep required payroll records and provide necessary wage statements and other notices, (e) failure to provide meal and rest periods, (f) failure to .pay- minimum wages, (g) failure to pay overtime wages, and (h) . unlawful deductions and kickbacks; (2) tortious interference with business relations; (3) breach of contract; (4) conversion; and (5) false advertising. (Id. ¶¶ 101-53.)

III. DISCUSSION

Pending before the court are Uber’s motions to compel individual arbitration as to two of the plaintiffs: .Victor Mallh in the Mumin Action, and Joce Martinez in the Ortega Action. (See Mumin Defs.’ Mot. to Compel Arbitration; Ortega Defs.’ Mot. to Compel Arbitration.) Uber concedes that Plaintiffs Manzoor Mumin and Jose Ortega properly opted out of arbitration, and thus does not seek to compel individual arbitra-tions against them. Also before the court are Uber’s motions to dismiss the operative complaints in both actions pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. (See Mumin Defs.’ Mot. to Dismiss; Ortega Defs.’ Mot. to Dismiss.)

A. Motion to Compel Arbitration

Plaintiffs Mallh and Martinez contest Uber’s motions to compel arbitration on a number of grounds. The court finds that the Arbitration Provision provides clear and unmistakable evidence that the parties intended to delegate the issue of arbitrability to an arbitrator, and further finds that the Provision is not unconscionable. The court also holds that the Class Action Waiver is valid and enforceable. Accordingly, Plaintiffs Mallh and Martinez are both compelled to arbitrate their claims on an individual basis. . .

1. Legal Standard

The Federal Arbitration Act (“FAA”) establishes a “federal policy favoring arbitration,” requiring federal courts to “rigorously enforce agreements to arbitrate.” Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 186 (1987). A written agreement to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Under the FAA, a party may move the district court for an order directing that arbitration proceed pursuant to the parties’ written agreement. Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016). In deciding such motions to compel arbitration, “courts apply a ‘standard similar to that applicable for a motion for summary judgment.’ ” Id. (quoting Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003)). Therefore, courts must “consider all relevant, admissible evidence submitted by the parties and contained in ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with ... affidavits.’ ” Chambers v. Time Warner, Inc., 282 F.3d 147, 155 (2d Cir. 2002) (quoting Fed. R. Civ. P. 56(c)). All reasonable inferences must be drawn in favor of the non-moving party. Nicosia, 834 F.3d at 229.

, Questions of arbitrability are generally reserved for judicial determination, including “whether the parties are bound by a given arbitration clause,” or “whether an arbitration clause in a concededly binding contract applies to a particular type of controversy.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83-84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). However, determinations of arbitrability may be delegated to an arbitrator “if there is clear and unmistakable evidence from the arbitration agreement, as construed by the relevant state law, that the parties intended that the question of arbitrability shall be decided by the arbitrator.” Shaw Grp. Inc. v. Triplefine Intern. Corp., 322 F.3d 115, 121 (2d Cir. 2003) (internal quotation marks omitted) (quoting Bell v. Cendant Corp., 293 F.3d 563, 566 (2d Cir. 2002)). “This principle ‘flow[s] inexorably from the fact that arbitration is simply a matter ■of contract between the parties.’ ” Wachovia Bank, Nat’l Ass’n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011) (quoting First Options, 514 U.S. at 943, 115 S.Ct. 1920).

2. Choice of Law

Plaintiff Mallh argues that California law applies to the interpretation of the parties’ agreement to arbitrate because the December 2015 Agreement contains a California choice of law provision. (Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. to Compel (“Mumin Arb. Opp’n”) (Dkt. 34 in No. 15-CV-6143) at 6-8.) By its own terms, however, the choice of law provision of the December 2015 Agreement “do[es] not apply to the arbitration clause ..., such arbitration clause being governed by the Federal Arbitration Act.” (December 2015 Agreement § 15.1.)

Where there is no applicable choice of law provision, courts in New York apply a “center of gravity” approach to determine the governing law in contract cases. In re Frito-Lay N. Am., Inc., No. 12-MD-2413 (RRM) (RLM), 2013 WL 4647512, at *19 (E.D.N.Y. Aug. 29, 2013) (citing Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1539 (2d Cir. 1997)); see also Lazard, 108 F.3d at 1539 (“A federal court sitting in diversity must apply the choice of law rules of the forum state, in this case New York.”). In determining the “center of gravity,” courts “consider a spectrum of significant contacts, including the place of contracting, the places of negotiation and performance, the location of the subject matter [of the contract], and the domicile or place of business of the contracting parties.” In re Frito-Lay, 2013 WL 4647512, at *19 (quoting Lazard Freres & Co., 108 F.3d at 1539). The places of contracting and performance are typically given the greatest weight. Id. Here, while Uber is headquartered in California, Plaintiff Mallh is a New York resident, holds a New York State Driver’s License as well as a For-Hire-Vehicle License issued by the New York City Taxi & Limousine Commission, performed the contract at issue in New York, and presumably agreed to the December 2015 Agreement in New York. (See Mumin Compl. ¶¶ 12-15,16, 49, 50; Driver’s Portal (Mumin Colman Deck, Ex. F).) The weight of contacts thus points to a “center of gravity” in New York, and the court accordingly finds that New York law governs.

3. Clear and Unmistakable Evidence of Intent to Delegate Arbitrability

Having determined that New York law applies, the court next analyzes whether “there is clear and unmistakable evidence from the arbitration agreement, as construed by [New York] law, that the parties intended that the question of arbi-trability shall be decided by the arbitrator.” Shaw Grp. Inc., 322 F.3d at 121 (citations and internal quotation marks omitted). The Arbitration Provision specifically states that “disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision ... shall be decided by an Arbitrator and not by a court or judge.” (December 2015 Agreement § 15.3(i).) This language clearly and unmistakably evinces the parties’ intent to submit to an arbitrator any disputes relating to the interpretation or application of the arbitral clause. See Fraternity Fund Ltd. v. Beacon Hill Asset Mgmt. LLC, 371 F.Supp.2d 571, 575-76 (S.D.N.Y. 2005) (applying New York law and finding contractual language that delegates to an arbitrator disputes involving “meaning, construction, validity and/or enforceability” of the parties’ agreement “clearly and unmistakably evidences the parties’ intent to submit questions of arbi-trability to an arbitrator”). Courts examining contracts with much less explicit statements have found clear and unmistakable evidence of intent. See, e.g., Contec Corp. v. Remote Sol., Co., 398 F.3d 205, 208 (2d Cir. 2005) (arbitration rules incorporated by reference, some of which “empower an arbitrator to decide issues of arbitrability”); Bell, 293 F.3d at 568 (broad language that “any controversy arising in connection with or relating to this Agreement ... or any other matter or thing”).

Plaintiff Mallh argues that the delegation of arbitrability was not clear and unmistakable because other portions of the parties’ agreement conflict with the Arbitration Provision. (Mumin Arb. Opp’n at 8-9.) He first points to the April and December Agreements’ forum. selection clause, which provided for courts in San Francisco to have “exclusive jurisdiction” over any disputes arising out of the parties’ agreement. (Id. at 9; see also December Agreement § 15.1.) Mallh argues that this provision conflicts with the Arbitration Provision, relying exclusively on a Northern District of California decision, the relevant portions of which were recently reversed by the Ninth Circuit. (Id.) See Mohamed v. Uber Techs. Inc., 848 F.3d 1201, 1209-1210 (9th Cir. 2016) (reversing in part Mohamed v. Uber Techs. Inc., 109 F.Supp.3d 1185 (N.D. Cal. 2015)). This argument fundamentally fails for two reasons. First, the clause analyzed in Mohamed differs materially from the provision here, which explicitly governs only those disputes “that are not subject to the arbitration clause.” (December 2015 Agreement § 15.1.) Even without this carve-out, the court would agree with the Ninth Circuit that the Arbitration Provision is consistent with the “exclusive jurisdiction” language of the forum selection clause. Mohamed, 848 F.3d at 1209. The Ninth Circuit reasoned:

“No matter how broad the arbitration clause, it may be necessary to file an action in court to enforce an arbitration agreement, or to obtain a judgment enforcing an arbitration award, and the parties may need to invoke the jurisdiction of a court to obtain other remedies.” It is apparent that the venue provision here was intended for these purposes, and to identify the venue for any other claims that were not covered by the arbitration agreement.

Id. (quoting Dream Theater, Inc. v. Dream Theater, 124 Cal.App.4th 547, 21 Cal.Rptr.3d 322, 328 (2004)). Other federal courts that have analyzed Uber’s agreements have similarly found no inconsistency. See, e.g., Varon v. Uber Techs., Inc., No. 15-CV-3650 (MJG), 2016 WL 1752835, at *6 (D. Md. May 3, 2016); Sena v. Uber Techs., Inc., No. 15-CV-2418, 2016 WL 1376445, at *3-4 (D. Ariz. Apr. 7, 2016). The court thus finds no conflict between the unambiguous language of the Arbitration Provision and the December 2015 Agreement’s forum selection clause.

Plaintiff Martinez argues that the Arbitration Provision of the December 2015 Agreement does not apply to him because he notified Uber of his intent to opt out of arbitration in the prior April 2015 Agreement. (Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. to Compel (“Ortega Arb. Opp’n”) (Dkt. 25 in No. 15-CV-7387) at 11-14.) “It is a well settled principle of contract - law that a new agreement between the same parties on the same subject matter supersedes the old agreement.” Ottawa Office Integration Inc. v. FTF Bus. Sys., Inc., 132 F.Supp.2d 215, 219 (S.D.N.Y. 2001) (citation omitted). Regardless of whether he previously opted out of arbitration, Martinez agreed to the subsequent December 2015 Agreement and did not opt out of its Arbitration Provision. (Ortega Colman Decl. ¶ 13.) The relevant inquiry before the court then is whether “there is clear and unmistakable evidence from the [operative] arbitration agreement ... that the parties intended that the question of arbitrability shall be decided by the arbitrator.” Shaw Grp. Inc., 322 F.3d at 121 (citations and internal quotation marks omitted, emphasis added). As discussed earlier, the Arbitration Provision’s language clearly and unmistakably states that disputes as to arbitrability are to be decided by an arbitrator. Martinez’s arguments that he expressed his intent to opt out of a prior arbitral clause before agreeing to the December 2015 Agreement is irrelevant. Under New York law, “where the language is clear and unambiguous, the court is required to ascertain the intent of the parties from within the four comers of the instrument, and not from extrinsic evidence.” Alliance Bernstein Inv. Research & Mgmt., Inc. v. Schaffran, 445 F.3d 121, 127 (2d Cir. 2006) (quoting Von Buren v. Von Buren, 252 A.D.2d 950, 675 N.Y,S.2d 739, 739-40 (1998)).

The court finds that Uber, Plaintiff Mallh, and Plaintiff Martinez intended to delegate questions of arbitrability to an arbitrator, and therefore any challenge to the scope, enforceability, or applicability of the Arbitration Provision .is for an arbitrator to resolve in the first instance.

4. Validity of Delegation of Arbitrability

Where a court finds clear and unmistakable evidence - that contractual parties agreed to arbitrate arbitrability, a party may nonetheless challenge the delegation of arbitrability itself as invalid for unconscionability. See Rent-A-Center, West, Inc. v, Jackson, 561 U.S. 63, 69-70, 130 S.Ct. 2772, 177 L.Ed.2d 408 (2010). Because an agreement to arbitrate threshold issues such as interpretation and applicability of an arbitration clause is simply “an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce,” this antecedent agreement itself must be valid and enforceable. Id. at 70, 130 S.Ct. 2772. As the Supreme Court explained, the “ ‘clear and unmistakable’ requirement ... pertains to the parties’ manifestation of intent, and not the agreement’s validity.” Id. at 69, 130 S.Ct. 2772 n.1. The court has concluded that the parties agreed to arbitrate arbitrability, but the question remains whether that agreement is itself enforceable. Id, However, Plaintiffs’ challenge must be aimed squarely upon the delegation of arbitrability itself, rather than the remainder of the Arbitration Provision or the December 2015 Agreement as a whole. Id. at 71-72, 130 S.Ct. 2772. This is because attacks on the latter are reserved to the arbitrator. Id. at 72,130 S.Ct. 2772. (See also December Agreement § 15.3(i) (“This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which ... are expressly excluded from the Arbitration Provision.”).)

Under New York law, an agreement is unconscionable only if “the contract was both procedurally and substantively unconscionable when made.” Robinson v. Entm’l One US LP, No. 14-CV-1203 (AJN), 2015 WL 3486119, at *9 (S.D.N.Y. June 2, 2015) (citations omitted). “The procedural element of unconsciona-bility concerns the contract formation process and the .alleged lack of meaningful choice; the substantive element looks to the content of the contract.” Id. (quoting Ragone v. Atl. Video at Manhattan Ctr., 595 F.3d 115, 121-22 (2d Cir. 2010)). An agreement is not procedurally unconscionable if there is a meaningful opportunity to opt out. Valle v. ATM Nat’l, LLC, No. 14-CV-7993 (KBF), 2015 WL 413449, at *6 (S.D.N.Y. Jan, 30, 2015) (approving of a 45-day window to opt out of arbitration clause); Teah v. Macy's Inc., No. 11-CV-1356, 2011 WL 6838151, at *6 (E.D.N.Y. Dec. 29, 2011) (concluding that an arbitration agreement was not procedurally unconscionable because it contained an opt-out provision and noting that other cases have not even required such opt-out clauses); cf. also Mohamed, 848 F.3d at 1210-12 (finding Uber arbitration provision not unconscionable under California law because the drivers could have opted out).

Here, Mallh and Martinez had 30 days to opt out of the Arbitration .Provision, as Plaintiffs Manzoor and Ortega had done, but failed to do so. Even a form contract that is offered on a “take it or leave it” basis, without a chance to opt out, may be valid. Nayal v. HIP Network Servs. IPA, Inc., 620 F. Supp.2d 566, 571-72 (S.D.N.Y. 2009). Moreover, inequality in bargaining position alone is hot sufficient unless it is combined with “high pressure tactics that coerce [a signatory’s] acceptance of onerous terms.” Valle, 2015 WL 413449, at *6. No such “high pressure tactics” are alleged here. Uber presented the agreement to arbitrate to its drivers, specifically noting in bold that “[arbitration is not a mandatory condition of your contractual relationship with Uber.”. (December 2015 Agreement § 15.3(viii).) The agreement to arbitrate arbitrability thus was not procedurally unconscionable.

Because Plaintiffs Mallh and Martinez cannot make the necessary showing of procedural unconscionability, the court need not decide whether the delegation of arbi-trability is substantively unconscionable.

5. Class Action Waiver

The only question remaining is whether the court compels individual arbitration as to Plaintiffs Mallh and Martinez. Uber seeks to enforce the Class Action Waiver portion of the Arbitration Provision, which states:

You and Uber agree to resolve any dispute that is in arbitration on an individual basis only, and not on a class or collective action basis (“Class Action Waiver”) The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis.

(December 2015 Agreement § 15.3(v) (bold in original).) The service agreement specifies that “disputes regarding the enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator.” (Id.) Plaintiff Mallh does not appear to challenge the validity of the Class Action Waiver. (Mumin Arb. Opp’n at 16 (arguing that the Class Action Waiver is unenforceable only because the Arbitration Provision is void on California public policy grounds).) Plaintiff Martinez, however, argues that the Class Action Waiver is unenforceable because it violates the Norris-La Guardia Act. (Ortega Arb. Opp’n at 24-25.)

The Norris-La Guardia Act protects an individual employee’s right to engage in “concerted activities for the purpose of ... mutual aid or protection.” 29 U.S.C. § 102. Any agreement that infringes on this right is unenforceable. Id. § 103. Martinez contends that the ability to pursue arbitration on a class-wide basis is a “concerted activity] for the purpose of ... mutual aid or protection,” and that the Class Action Waiver is thus invalid as a matter of law. However, the Second Circuit has rejected this argument twice—implicitly and explicitly. In Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013), the court addressed whether a similar right under Sections 7 and 8(a)(1) of the National Labor Relations Act (“NLRA”) rendered class action waivers in an arbitration agreement unenforceable. Id. at 292. The court found that it did not, rejecting the National Labor Relations Board’s contrary decision in D.R. Horton, Inc., 357 N.L.R.B. No. 184 (Jan. 3, 2012). Sutherland, 726 F.3d at 297 n.8. In a later summary order, the Second Circuit analyzed whether a “prohibition of class or collective adjudication of work-related claims illegally restricts employees’ substantive rights under the NLRA and the Norris-La Guardia Act, and is unenforceable under the FAA.” Patterson v. Raymours Furniture Co., 659 Fed.Appx. 40, 42 (2d Cir. Sept. 2, 2016) (summary order), petition for cert. filed (U.S. Jan. 9, 2017) (No. 16-388). The court again found no infringement. Id. at 43. Although Sutherland did not directly reference the Norris-La Guardia Act, the Patterson opinion noted that “the parties in Sutherland extensively briefed their arguments under the NLRA and [the Norris-La Guardia Act], and the panel’s rejection of those arguments was necessary to its judgment.” Id. The court in Patterson therefore found that it was bound by the holding in Sutherland “until such time as it is overruled either by an en banc panel of [the Second Circuit] or by the Supreme Court.” Id. (quoting United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004)). For the same reasons, the undersigned now rejects Martinez’s challenge to the Class Action Waiver under the Norris-La Guardia Act.

For the foregoing reasons, Uber’s motion to compel Plaintiffs Mallh and Martinez to arbitrate their claims on an individual basis is granted.

B. Motion to Dismiss

The court next addresses Uber’s motions to dismiss all' claims asserted by Plaintiffs Manzoor Mumin and Jose Ortega, both of whom opted out of the Arbitra-' tion Provision, Plaintiffs raise a raft of claims based in New York Labor Laws, consumer protection statutes, and various common law causes of action. Uber seeks to dismiss all of these claims as insufficiently pleaded under Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure. The court finds that Plaintiff Ortega adequately pleads claims that Uber (a) failed to remit gratuities and'pay overtime, (b) engaged in unlawful deductions, (c) provided inadequate pay statements, and (d) engaged in false advertising. The court' separately finds that Plaintiff- Mumin’s Complaint contains sufficiently pleaded claims that Uber failed to remit gratuities and pay minimum wagé. The court dismisses Plaintiffs’ remaining claims,

1. Legal Standard

The purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to test the legal sufficiency of a plaintiffs claims for relief. Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), In reviewing a complaint, the court must accept as true all allegations of fact, and draw all reasonable inferences in favor of the plaintiff. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). A complaint will survive a motion to dismiss if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plausibility “is not. akin to a ‘probability requirement,’ ” but requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant -is liable for the misconduct alleged,-” Id. “[M]ere ‘labels and conclusions’ or ‘formulaic recitations] of the elements of a cause of action will not do’; rather, the complaint’s ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (emphasis in original) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).

In contrast to the more generous standard applicable to most pleadings, complaints that include allegations of fraud must be “pled with particularity” under Rule 9(b) of the Federal Rules of Civil Procedure. See Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993). While the court must continue to accept as true all factual allegations in the complaint and draw inferences in favor of the pleader, the pleader must include more detailed information in order to give rise to an inference of fraudulent intent. Id. Specifically,“[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b); see also Mills, 12 F.3d at 1175 (Complaints subject to 9(b) must “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.”).

The particularity requirement applies to “all averments of fraud ... and is not limited to allegations styled or denominated as fraud or expressed in terms of the constituent elements of a fraud cause of action.” Rombach v. Chang, 355 F.3d 164, 171 (2d Cir. 2004). Determining whether a non-fraud claim sounds in fraud such that it falls within the ambit of Rule 9(b) requires a case-by-case analysis of the particular pleadings. In re Befco, Inc. Sec. Litig., 503 F.Supp.2d 611, 632 (S.D.N.Y. 2007) (citing Rombach, 355 F.3d at 172). The focus of a court’s inquiry is the conduct alleged. Rombach, 355 F.3d at 171. “A claim sounds in fraud when, although not an ^essential element of the claim, the plaintiff alleges fraud as an integral part of the conduct giving rise to the claim” -Xpedior Creditor Trust v. Credit Suisse First Boston (USA) Inc., 341 F.Supp.2d 258, 269 (S.D.N.Y. 2004) (applying Rombach, 355 F.3d at 171); see also Marchak v. JPMorgan Chase & Co., 84 F.Supp.3d 197, 211 (E.D.N.Y. 2015). “Courts have found nom fraud claims to sound in fraud where the underlying conduct alleged has been fraud or closely linked with fraudulent behavior, such as claims for which fraud is a necessary element or claims that the other party has attempted to induce action through misrepresentations or material omissions.” Levy v. Young Adult Inst., Inc., 103 F.Supp.3d 426, 443 (S.D.N.Y. 2015) (collecting cases).

2. New York Labor Laws

Uber primarily attacks three alleged violations of New York Labor Laws: that Uber failed to remit gratuities that were due to Plaintiffs, failed to pay minimum wage (to both Ortega and Mumin) and overtime (solely as to Ortega), and applied unlawful deductions to Ortega’s pay. The proper classification of Uber drivers is not at issue in the motions to dismiss, and the court assumes for the purpose of deciding these’motions that both Ortega and Mu-min are employees. (See Ortega MTD Mem. at 5 n.l; Mumin MTD Mem. at 7 n.l.) Uber argues that these claims contain an averment of fraud and lack the specificity required by Rule 9(b), The court finds that these claims are not subject to Rule 9(b)’s heightened pleading standard. The court further finds both Plaintiffs sufficiently-plead .claims that, Uber unlawfully retained gratuities; that Ortega adequately pleads claims for failure to pay overtime, unlawful deductions, and inadequate pay statements; and that Mumin makes out a sufficient claim for minimum wage violations. The court dismisses Plaintiffs’ other Labor Law claims.

a. Gratuities

i. Heightened Pleading under Rule 9(b)

Uber first argues that the heightened pleading standards of Rule 9(b) applies to Mumin and Ortega’s gratuity claims and that both Plaintiffs • failed to meet their burdens. (See 'Mem, of Law in Supp. of Defs.’ Mot. to Dismiss (“Mumin MTD Mem.”) (Dkt. 27 in No. 15-CV-6143) at 3-6; Mem. of Law in Supp. of Defs,’ Mot. to Dismiss (“Ortega MTD Mem.”) (Dkt. 23 in No. 15-CV-7387) at 3-5.) Uber contends that Plaintiffs’ gratuity-related allegations sound in fraud because they are premised on the idea that Uber misled riders into believing that tip is included in the charged fare. (Mumin MTD Mem. at 3; Ortega MTD Mem. at 3-4.)

Turning first to Ortega’s gratuity claim, the court finds that fraud is not “an integral part of the conduct giving rise to the claim.” Xpedior Creditor Trust, 341 F.Supp.2d at 269. Uber construes Ortega’s Amended Complaint to claim that Uber misrepresented to riders that the fare includes a tip. (Ortega MTD Mem. at 3). However, Ortega actually relies on Uber’s alleged representation at face value, namely that: (1) “a fair tip is included with the price of the fare” and (2), Uber unlawfully retained this “fair tip.” (Ortega Compl. ¶¶ 79-82.) Fraudulent conduct therefore is not integral to this claim, and the particularity requirement does not apply.

Mumin’s allegations are considerably more convoluted because he asserts multiple claims involving gratuities, including a “fraud and misrepresentation” cause of action, but did not “carefully structure[ his Complaint] so as to draw a clear distinction between [the non-fraud] and fraud claims.” In re Refco, Inc. Sec. Litig., 503 F.Supp.2d at 632. He alleges that “Uber intentionally misrepresents to the public how it compensates its Drivers so that it can retain a disproportionate percentage of the fares generated by Uber Drivers.” (Mumin Compl. ¶ 5; see also id. ¶ 39 (“Uber intentionally misrepresented that gratuity was included in the cost of fares and instructed passengers not to leave a tip in addition to the amount of the fare.”).) This alleged scheme forms the basis for Mumin’s tortious interference claim that, but for Uber’s misrepresentations, riders would have paid Mumin and others similarly situated a tip on top of the charged fare. (Id. ¶¶ 75-76.) He separately alleges that Uber misrepresented to its drivers that it would remit gratuities to them, asserting claims of fraud and misrepresentation (id. ¶¶ 93-98) and promissory estoppel (id. ¶¶ 99-105). However, separating the overlapping allegations, the crux of Mumin’s NYLL gratuity claim is that “Uber markets its rides as gratuity-included, but Uber does not remit the gratuity (or an amount in-kind) to Uber Drivers.” (Id. ¶ 5.) This is the same theory asserted by Ortega. The underlying conduct alleged—i.e., that Uber retained the portion of the fare that is supposed to be a gratuity to the drivers—was thus not “fraud or closely linked with fraudulent behavior.” Levy, 103 F.Supp.3d at 443. Indeed, it would be difficult to understand Mumin’s gratuity claim if the court assumed that Uber’s alleged statement to riders that tip was included was a misrepresentation. The logical consequence of this assumption is that tip was not included in the fare charged to the rider, which means Uber did not wrongfully retain any gratuity intended for Mumin. Construing his claim to be premised on the same legal theory as that put forth by Ortega, Mumin’s gratuity claim likewise does not fall within the ambit of Rule 9(b).

ii. Sufficiency of Claim

Uber alternatively argues that the gratuity claims fail under Rule 12(b)(6). NYLL prohibits an employer from “demand[ing] or accepting], directly or indirectly, any part of the gratuities, received by an employee, or retaining] any part of a gratuity or of any charge purported to be a gratuity for an employee.” N.Y. Lab. Law § 196-d. Gratuity “can include mandatory charges when it is shown that employers represented or allowed their customers to believe that the charges were in fact gratuities for their employees.” Samiento v. World Yacht Inc., 10 N.Y.3d 70, 854 N.Y.S.2d 83, 883 N.E.2d 990, 996 (2008). Contrary to Uber’s contention, Sarniento did not require that an alleged gratuity be separately and specifically itemized before it is covered by Section 196-d. Id., 854 N.Y.S.2d 83, 883 N.E.2d at 992, 994-95. (See Mumin MTD Mem. at 7-8; Ortega MTD Mem. at 6-7.)

In Sarniento, the Court of Appeals of New York addressed whether a dining cruise operator violated Section 196-d when it retained two types of charges that the plaintiffs, waitstaff on the cruise, purported were gratuities. 854 N.Y.S.2d 83, 883 N.E.2d at 991-92. The first was a separately itemized 20% mandatory service charge that the defendant explained to its customers was a gratuity that would be remitted to the plaintiffs. Id. at 992, 883 N.E.2d at 992, 994-95. Second, the defendant represented to its customers that gratuity was included in the overall price of the dining cruise. Id. In the latter scenario, there was no segregated charge purporting to be a tip, and the defendant never specified what portion of the total price was gratuity intended for the plaintiffs. In both cases, the dining cruise customers refrained from tipping because they believed the price they paid already included gratuity. Id. at 992, 883 N.E.2d at 992, 994-95. The court held that the “plaintiffs should be allowed to go forward on [the gratuity] cause of action as it relates to all [ ] types of cruises.” Id. at 996, 883 N.E.2d at 992, 994-95.

The second type of gratuity analyzed in Sarniento is substantially similar to Mumin and Ortega’s allegations here. In both instances, plaintiffs allege that tipping is customary in their line of work, but that their employers represented to customers that gratuity is included in the total price paid. As a result of that representation, customers did not tip the employee, believing that they already paid the tip as part of the total price. The portion of the price that was meant to be a tip for the employee is not expressly stated. Lastly, the employer fails to remit any part of the total price to the employee as a gratuity. Because the Court of Appeals permitted Section 196-d claims based on this same set of circumstances, Uber’s alleged retention of gratuity is also actionable.

Having concluded that a gratuity need not be separately itemized, the only question remaining as to the viability of Mumin and Ortega’s claim is whether a “reasonable [customer] would understand a service charge was being collected in lieu of a gratuity.” Id. at 995, 883 N.E.2d at 992, 994-95. Accepting as true Plaintiffs’ allegations that Uber told riders that “there is no need to tip” or that “tip is included” (Mumin Compl. 37, 69; Ortega Compl. 79-80), as the court must on a motion to dismiss, the court considers it plausible that a reasonable rider would believe a portion of the fare was “collected in lieu of a gratuity.” Accordingly, Uber’s motions to dismiss the gratuity claims are denied.

b. Overtime and Minimum Wages

Uber next asserts that Ortega failed to adequately allege that he was entitled to overtime pay, and that both Ortega and Mumin fail to adequately allege that they were not paid minimum wage pursuant to New York law. Whether a party plausibly pleaded a violation of NYLL’s overtime and minimum wage provisions is a case-specific analysis. See Dejesus v. HF Mgm’t Servs., LLC, 726 F.3d 85, 88 (2d Cir. 2013). To state a plausible overtime claim, “a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of 40 hours.” Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106, 114 (2d Cir. 2013). The Second Circuit has found pleadings insufficient to support a plausible claim where the “typical[]” hours allegedly worked per week did not add up to more than 40 hours, where the plaintiff does not allege that she was denied overtime pay in a week she worked more than 40 hours, id. at 114—15, or where a plaintiff vaguely alleges that “in some or all weeks she worked more than forty hours a week,” Dejesus, 726 F.3d at 89 (internal quotation marks omitted).

The court concludes that Ortega sufficiently alleged he worked more than 40 hours in a given week. Ortega alleges that he worked an average of 6 days a week for 10 to 12 hours per day, amounting to 60 to . 72 hours , per week, from August 2014. to the present. (Ortega Compl. ¶ 36.). He also asserted that Uber never paid him overtime, in part because Uber considers its drivers to be independent contractors and thus exempt from the overtime pay requirement. (See Ortega Compl. ¶89.) While Ortega could have more easily cleared the bar for pleading sufficiency if he had included more specificity, see; e.g., Lopez-Serrano, 132 F.Supp.3d at 402 (alleging for specific weeks the times that plaintiff began and ended work), his existing allegations are enough to state plausible overtime claims.

The pleading standard is similar for claims that an employer failed to pay minimum wage pursuant to New York law. To state a minimum wage claim, “it is sufficient for a plaintiff to allege facts about her salary and working hours, such that a simple arithmetical calculation can be used to determine the amount owed per pay period.” Lopez-Serrano, 132 F.Supp.3d at 402 (citations omitted).. Additionally, courts will take into account work-related expenses if deduction of the expenses from gross wages causes an employee’s pay to fall below minimum wages. Guan Ming Lin v. Eenihana Nat’l Corp., 766 F.Supp.2d 504, 511-12 (S.D.N.Y. 2010).

Applying these guidelines to the allegations in this case, the court finds that Mumin has stated a minimum wage claim but Ortega has not. Mumin alleges that he earned approximately $1,100 a week before taking into account weekly work-related expenses of about $766. (Mumin Compl. ¶ 10.) Because he alleges that he worked an average of 55 hours a week, the court calculates his hourly pay after expenses to be $6.07. (Id. ¶¶9, 10.) líber complains that Mumin failed to break down the work-related expenses by category. (Mumin MTD Mem. at 10.) However, although Mu-min did not break down his expenses by costs, he did allege the types of work-related expenses he incurred that added up to $766 per week. (Mumin Compl. ¶ 10.) These include gas, insurance, finance payments, cleaning, and car repairs. (Id.) Uber does not explain why any of these expenses would not be reimbursable under New York law, (see Mumin MTD Mem. at 10.), and so it is unclear why failing to state the specific amount of each cost undermines the claim. Because the New York minimum wage was $7.25 an hour during the time Mumin worked as an Uber* driver, he has plausibly alleged that Uber failed to pay him a minimum wage.

Ortega’s allegations, on the other hand, are insufficient because he fails to specify the value of his work-related expenses.,-By his own estimate, he earned $600 to $1,000 a week while working between 60 to 72 hours per week. (Ortega Compl. ¶¶ 36, 40.) This results in an hourly pay range of $10 to $13.89. This rate could be reduced by.accounting for work-related expenses, but unlike Mumin,