PHILADELPHIA – Litigation brought by an Alabama-based Uber driver, who alleged that the Insomnia Cookies company stiffed him and numerous other employees of large sums of money in tips when it sub-contracts its product delivery services to drivers on the ride share app, has been voluntarily dismissed.
Robert Wilkins (individually and on behalf of all others similarly-situated) of Lee County, Ala. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on July 15, 2022 versus Insomnia Cookies, LLC and Insomnia Cookies Operators, LLC, of Newtown Square.
Wilkins was originally a driver for Postmates, but when Postmates was acquired by Uber Technologies, Inc. in December 2020, he became a driver for Uber Eats.
As a driver for Uber Eats, Wilkins said he is asked to pick up various orders from places like restaurants and grocery stores and deliver them to users of the Uber app and services – though he is sometimes requested by independent businesses through the Uber app to make deliveries for those businesses to their customers.
One such business is Insomnia Cookies, which boasts more than 100 locations nationwide, including one in Auburn, Ala.
Insomnia Cookies also hires its own delivery drivers to fulfill orders placed on its website, but when it is short on drivers or there is a high demand for deliveries, it uses third-party services like Uber Eats to deliver its cookies.
Insomnia Cookies sends a request to Uber to pick up and deliver the order made through Insomnia Cookies’ platform. Upon information and belief, payment for the order, including tips, is made first to Insomnia Cookies, and then, Insomnia Cookies pays Uber for the delivery service.
“On Aug. 19, 2020, plaintiff reached out online to Postmates explaining that he had not received a tip on 61 deliveries with Insomnia Cookies between Aug. 11, 2020 and Aug. 18, 2020. By comparison, he received $26.99 in tips for only eight deliveries on Aug. 10, 2020. Plaintiff requested an audit of the 61 deliveries and stated that he would be cancelling all Insomnia Cookies deliveries until he received a response. In response via emails on Aug. 19, 2020 – one from an automated source and the other from a ‘Fleet Support Specialist’ named Elena H. – Postmates ignored plaintiff’s request for an audit and reminded plaintiff that it does not keep any of its drivers’ tips,” the suit said.
“In an email dated Aug. 31, 2020, plaintiff expressed his frustration with Postmates. He also explained that over 90 percent of the Insomnia Cookies’ orders have tips on the receipts. However, he had not received a single tip since Aug. 12, 2020 despite making 93 deliveries for Insomnia Cookies. After a couple more emails back and forth between plaintiff and Postmates, Elena H. responded on Aug. 31, 2020 that she had investigated plaintiff’s issue further. She could see that there was no tip reflecting from the deliveries plaintiff referred to. She believed the tip was applied directly to Insomnia Cookies, as it was Insomnia Cookies that made the delivery order. As explained further in an email dated Aug. 31, 2020 from a different ‘Fleet Support Specialist’ named Greg W., any tips were directed to Insomnia Cookies.”
The following day, Wilkins reached out to Insomnia Cookies directly to try and have the issue resolved. He contacted Insomnia Cookies’ customer service, explained that he had made over 90 deliveries without receiving any tips, and noted what Postmates had told him, i.e. that Insomnia Cookies was the customer and was keeping his tips. A Customer Service Team Lead named Melynda responded and told him that he needed to contact the manager of the bakery he was delivering for.
Wilkins then emailed the local manager for the Insomnia Cookies location in Auburn, Ala., Kelli Fears, and again explained his predicament. Fears responded and apologized, noting that they had been having issues with Postmates, including fee glitches.
Fears asked that Wilkins email her the orders he had taken so she could look into it. Importantly, though she noted that the company “aimed to make sure you guys get your tips”, the issue was never fully resolved, and Wilkins spent months going further up the chain of command at Insomnia Cookies, to no ultimate avail.
“On March 8, 2021, plaintiff emailed Seth Berkowitz, Insomnia Cookies’ Founder and CEO, an updated copy of his tip spreadsheet and estimated that he was due $409.45 in unpaid tips. He noted that he had dealt with Director of Operations Charlene Bellamy, Vice-President Suzanne Toner and Kellie Fears, all of whom assured him that the tip issue would be resolved. He received a response from Toner the following day, stating that she assumed the tips had been paid out but had followed up with the team and would have an answer for him that afternoon. On June 21, 2021, plaintiff again emailed Berkowitz, noting that it had been almost a year of dealing with this issue. Plaintiff stated that he had been told over and over that the issue would be worked out by Insomnia Cookies, but that in his last conversation with Toner, he was told that he was not due anything else,” the suit stated.
“On Dec. 12, 2021, plaintiff contacted Ms. Toner to let her know that his tips were again being stolen by the defendants. An email from Toner dated Dec. 22, 2021 asking about the dates on which plaintiff ‘believed’ he was not paid tips was the last correspondence between plaintiff and defendants. Through his exhausting efforts raising this issue time and again with Insomnia Cookies, plaintiff was reimbursed some – but not nearly all – of the tips he earned on Insomnia Cookies deliveries.”
Wilkins said has been making deliveries for Postmates (now Uber Eats) for years and has not had a problem with any company other than Insomnia Cookies, having regularly been paid tips for his other deliveries. Because of Insomnia Cookies’ actions, Wilkins adds that he and other similarly situated individuals have been cheated out of their hard-earned pay – tips that customers believed were going to Wilkins and his fellow class members as a compliment for their services.
In a Dec. 6, 2022 proposed stipulation and order, the parties requested the litigation be stayed, while a settlement is arrived at. The company contended that a binding an enforceable arbitration agreement and class action waiver governs the claims upon which this case is based, while the plaintiff and his counsel disagreed with this argument. Nevertheless, the filing stated all parties willingly entered mediation and settlement negotiations.
“It is hereby stipulated, agreed and requested by the parties, by and through their counsel of record, that the Action be stayed, and any and all litigation deadlines – including but not limited to defendants’ deadline to answer, move, or otherwise respond to plaintiff’s complaint – be tolled, pending the parties’ participation in mediation that shall be scheduled to occur within 120 days of this order,” the filing stated.
“The parties shall update the Court promptly after the mediation and, if necessary, propose a new deadline for defendants to answer, move, or otherwise respond to plaintiff’s complaint and defendants shall not be deemed to have waived any defenses or affirmative defenses, or the right to move to dismiss the action and to compel plaintiff to pursue his claims on an individualized basis in arbitration.”
The following day, Dec. 7, 2022, U.S. District Court for the Eastern District of Pennsylvania Judge Gerald A. McHugh granted the requested stipulation and stayed the case.
UPDATE
After the six-month stay, on June 1, plaintiff counsel filed a notice of voluntary dismissal, which noted that the case had been ended. Subsequent to the aforementioned mediation session, it was likely the case had received a settlement, though this was not explicitly noted.
“Please take notice that, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), the above-entitled action shall be and hereby is dismissed with prejudice and without costs, disbursements or attorneys’ fees, ” the notice stated.
McHugh authorized the notice the following day, on June 2.
The plaintiff was represented by Kenneth J. Grunfeld and Richard Golomb of Golomb Spirt Grunfeld in Philadelphia, plus Robert G. Methvin, James M. Terrell and Courtney C. Gipson of Methvin Terrell Yancey Stephens & Miller, in Birmingham, Ala.
The defendants were represented by Stephanie Jill Peet, Douglas J. Klein and Mina M. Wood of Jackson Lewis, in Philadelphia and New York. N.Y.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-03040
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com