GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR., … · CASE NO. 3:20-CV-02211-EMC Gibson,...

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION

CASE NO. 3:20-CV-02211-EMC

Gibson, Dunn & Crutcher LLP

GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR., SBN 132099 [email protected] THEANE EVANGELIS, SBN 243570 [email protected] BLAINE H. EVANSON, SBN 254338 [email protected] HEATHER RICHARDSON, SBN 246517 [email protected] 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: 213.229.7000 Facsimile: 213.229.7520 JOSHUA S. LIPSHUTZ, SBN 242557 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5303 Telephone: 202.955.8500 Facsimile: 202.467.0539 [email protected] Attorneys for Defendants UBER TECHNOLOGIES, INC., and DARA KHOSROWSHAHI

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JOHN CAPRIOLE, individually and on behalf of all others similarly situated,

Plaintiff,

v.

UBER TECHNOLOGIES, INC., and DARA KHOSROWSHAHI,

Defendants.

CASE NO. 3:20-cv-02211-EMC

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Hearing Date: April 22, 2020 Hearing Time: 10:00 a.m. Hearing Place: Courtroom 5 Judge: Hon. Edward M. Chen

Case 3:20-cv-02211-EMC Document 67 Filed 04/06/20 of 34

mailto:[email protected]

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT on April 22, 2020 at 10:00 a.m., or as soon thereafter as the

matter may be heard before the Honorable Edward M. Chen in Courtroom 5 of the United States

District Court for the Northern District of California in the San Francisco Courthouse, Seventeenth

Floor, 450 Golden Gate Avenue, San Francisco, California, Defendants Uber Technologies, Inc. and

Dara Khosrowshahi (collectively, “Uber”) will and hereby do move this Court for an order compelling

arbitration on an individual, non-class basis of the claims asserted by Plaintiff John Capriole. This

motion is brought on the ground that Plaintiff’s claims against Uber are subject to a valid and

enforceable arbitration agreement that requires Plaintiff to arbitrate his claims on an individual basis

only.

Defendants’ motion is based on this Notice of Motion and Motion, the accompanying

Memorandum of Points and Authorities, the concurrently filed Declaration of Brad Rosenthal, any

other matters of which the Court may take judicial notice, other documents on file in this action, and

any oral argument of counsel.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF CONTENTS

Page

i DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION



I. INTRODUCTION .................................................................................................................... 1

II. BACKGROUND ...................................................................................................................... 2

III. ARGUMENT ............................................................................................................................ 5

A. The FAA Requires Bilateral Arbitration of Plaintiff’s Claims. .................................... 6

1. Plaintiff Belongs to a Class of “Personal Passenger-Transportation Workers.” .......................................................................................................... 8

2. This Class of Workers Is Not “Engaged in Foreign or Interstate Commerce.” ...................................................................................................... 9

3. The Arbitration Provision Does Not Appear in a “Contract[] of Employment.” ................................................................................................. 13

B. The Class Action Waiver Is Valid and Enforceable. .................................................. 15

C. Plaintiff Agreed to Arbitrate Any Disputes with Uber. .............................................. 16

D. All Other Questions Are Reserved for Arbitration. .................................................... 17

E. Even if the FAA Does Not Apply, the Court Should Compel Arbitration of Plaintiff’s Claims Under State Law. ........................................................................... 22

IV. CONCLUSION ....................................................................................................................... 24


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF AUTHORITIES

Page(s)

ii DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION



Cases Ajemian v. Yahoo!, Inc.,

987 N.E.2d 604 (Mass. App. Ct. 2013) ...........................................................................................18

Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265 (1995) ..........................................................................................................................7

American Express Co. v. Italian Colors Rest., 570 U.S. 228 (2013) ........................................................................................................................15

AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) ........................................................................................................................15

AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643 (1986) ........................................................................................................................20

Atl. Marine Const. Co. v. U.S. Dist. Ct., 571 U.S. 49 (2013) ..........................................................................................................................18

Atwood v. Rent-A-Ctr. E., Inc., 2016 WL 2766656 (S.D. Ill. May 13, 2016) ...................................................................................22

Awuah v. Coverall N. Am., Inc., 703 F.3d 36 (1st Cir. 2012) .............................................................................................................19

Bacashihua v. U.S. Postal Serv., 859 F.2d 402 (6th Cir. 1988) .............................................................................................................8

Bekele v. Lyft, Inc., 199 F. Supp. 3d 284 (D. Mass. 2016) .......................................................................................20, 23

Blair v. Rent-A-Center, Inc., 928 F.3d 819 (9th Cir. 2019) ...........................................................................................................21

Booth v. Quantum3D, Inc., 2005 WL 1512138 (N.D. Cal. June 15, 2005) ................................................................................19

Breazeale v. Victim Servs., Inc., 198 F. Supp. 3d 1070 (N.D. Cal. 2016) ..........................................................................................22

Bruster v. Uber Techs., Inc., 188 F. Supp. 3d 658 (N.D. Ohio 2016) .............................................................................................6

Bryant v. Tristate Logistics of Ariz., LLC, 2020 WL 1455770 (D. Ariz. Mar. 25, 2020) ..................................................................................12

Carey v. Uber Techs., Inc., 2017 WL 1133936 (N.D. Ohio Mar. 27, 2017) ................................................................................6


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

iii DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION



Cavallo v. Uber Techs., Inc., 2017 WL 2362851 (D.N.J. May 31, 2017) .......................................................................................6

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988) ........................................................................................................................19

Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) ................................................................................................1, 8, 9, 10, 12, 13

Congdon v. Uber Techs., Inc., 226 F. Supp. 3d 983 (N.D. Cal. 2016) ..............................................................................................6

Cullinane v. Uber Techs., Inc., 893 F.3d 53 (1st Cir. 2018) .......................................................................................................18, 19

Cunningham v. Lyft, Inc., 2020 WL 1503220 (D. Mass. Mar. 27, 2020) .................................................................................12

Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985) ..........................................................................................................................7

Devries v. Experian Info. Sols., Inc., 2017 WL 2377777 (N.D. Cal. June 1, 2017) ..................................................................................21

Diaz v. Michigan Logistics Inc., 167 F. Supp. 3d 375 (E.D.N.Y. 2016) ............................................................................................22

Ellerbee v. GameStop, Inc., 604 F. Supp. 2d 349 (D. Mass. 2009) .............................................................................................23

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) ......................................................................................................1, 7, 16, 21

Gadson v. SuperShuttle Int’l, 2011 WL 1231311 (D. Md. Mar. 30, 2011) ......................................................................................9

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) ..........................................................................................................................14

Gray v. Uber, Inc., 362 F. Supp. 3d 1242 (M.D. Fla. 2019) ............................................................................................6

Gray v. Uber Techs., Inc., 2019 WL 1785094 (M.D. Fla. Apr. 10, 2019) ..................................................................................8

Grice v. Uber Techs. Inc., 2020 WL 497487 (C.D. Cal. Jan. 7, 2020) .......................................................................6, 8, 12, 13


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

iv DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION



Guan v. Uber Techs., Inc., 236 F. Supp. 3d 711 (E.D.N.Y. 2017) ..............................................................................................6

Gunn v. Uber Techs., Inc., 2017 WL 386816 (S.D. Ind. Jan. 27, 2017) ......................................................................................6

Harrington v. Atlantic Sounding Co., 602 F.2d 113 (2d Cir. 2010) ............................................................................................................15

Heller v. Uber Techs. Inc., 2020 WL 413243 (C.D. Cal. Jan. 7, 2020) ...................................................................................6, 8

Kowalewski v. Samandarov, 590 F. Supp. 2d 477 (S.D.N.Y. 2008) .............................................................................................13

Lamour v. Uber Techs., Inc., 2017 WL 878712 (S.D. Fla. Mar. 1, 2017) .......................................................................................6

Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019) ..........................................................................................................1, 15, 16

Lathan v. Uber Techs., Inc., 266 F. Supp. 3d 1170 (E.D. Wisc. 2017) ..........................................................................................6

Lee v. Uber Techs., Inc., 208 F. Supp. 3d 886 (N.D. Ill. 2016) ..........................................................................................6, 17

Lenz v. Yellow Transp., Inc., 431 F.3d 348 (8th Cir. 2005) ...........................................................................................................10

Magana v. Doordash, Inc., 343 F. Supp. 3d 891 (N.D. Cal. 2015) ............................................................................................22

McGill v. Citibank, N.A., 393 P.3d 85 (Cal. 2017) ..................................................................................................................21

Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017) ........................................................................................................19, 20

Micheletti v. Uber Techs., Inc., 213 F. Supp. 3d 839 (W.D. Tex. 2016) .............................................................................................6

Mohamed v. Uber Techs., Inc., 848 F.3d 1201 (9th Cir. 2016) .............................................................................................1, 6, 7, 18

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) ........................................................................................................................7, 18


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

v DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION



Mumin v. Uber Techs., Inc., 239 F. Supp. 3d 507 (E.D.N.Y. 2017) ..............................................................................................6

Mundi v. Union Sec. Life Ins. Co., 555 F.3d 1042 (9th Cir. 2009) .........................................................................................................18

Muth v. Fondren, 676 F.3d 815 (9th Cir. 2012) ...........................................................................................................19

New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019) ......................................................................................................................14

O’Connor v. Uber Techs., Inc., 904 F.3d 1087 (9th Cir. 2018) .....................................................................................1, 6, 15, 19, 20

Okereke v. Uber Techs., Inc., 2017 WL 6336080 (D. Mass. June 13, 2017) .........................................................................6, 7, 20

Olivares v. Uber Techs., Inc., 2017 WL 3008278 (N.D. Ill. July 14, 2017) .....................................................................................6

Omaha & Council Bluffs St. Ry. Co. v. I.C.C., 230 U.S. 324 (1913) ....................................................................................................................2, 11

John T. Callahan & Sons, Inc. v. Dykeman Elec. Co., 266 F. Supp. 2d 208 (D. Mass. 2003) .............................................................................................23

PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401 (2003) ........................................................................................................................18

Palcko v. Airborne Express, Inc., 372 F.3d 588 (3d Cir. 2004) ............................................................................................................10

Pelayo v. Platinum Limousine Servs., Inc., 2015 WL 9581801 (D. Haw. Dec. 30, 2015) ..................................................................................13

Peng v. Uber Techs., Inc., 237 F. Supp. 3d 36 (E.D.N.Y. 2017) ................................................................................................6

Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63 (2010) ........................................................................................................1, 6, 7, 17, 22

Revitch v. Uber Techs., Inc., 2018 WL 6340755 (C.D. Cal. Sept. 5, 2018) ............................................................................21, 22

Richemond v. Uber Techs., Inc., 263 F. Supp. 3d 1312 (S.D. Fla. 2017) .............................................................................................6


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

vi DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION



Rimel v. Uber Techs., Inc., 246 F. Supp. 3d 1317 (M.D. Fla. 2017) ............................................................................................6

Rittmann v. Amazon.com, Inc., 383 F. Supp. 3d 1196 (W.D. Wash. 2019) ................................................................................12, 22

Roberts v. AT&T Mobility LLC, 2016 WL 1660049 (N.D. Cal. Apr. 27, 2016) ..................................................................................2

Rosen v. Transx Ltd., 816 F. Supp. 1364 (D. Minn. 1993) ..................................................................................................8

Scaccia v. Uber Techs., Inc., 2019 WL 2476811 (S.D. Ohio June 13, 2019) ...................................................................6, 7, 8, 13

Sena v. Uber Techs., Inc., 2016 WL 1376445 (D. Ariz. Apr. 7, 2016) .......................................................................................6

Sienkaniec v. Uber Techs., Inc., 401 F. Supp. 3d 870 (D. Minn. 2019) ...............................................................................................9

Singh v. Uber Techs., Inc., 939 F.3d 210 (3d Cir. 2019) ........................................................................................................8, 13

St. Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345 (2008) ........................................................................................................................6

Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010) ........................................................................................................................15

Suarez v. Uber Techs., Inc., 2016 WL 2348706 (M.D. Fla. May 4, 2016) ....................................................................................6

Uhl v. Komatsu Forklift Co., Ltd., 512 F.3d 294 (6th Cir. 2008) .............................................................................................................7

United States v. Yellow Cab Co., 332 U.S. 218 (1947) ....................................................................................................................2, 12

Vargas v. Delivery Outsourcing, LLC, 2016 WL 946112 (N.D. Cal. Mar. 14, 2016) ..............................................................................2, 12

Varon v. Uber Techs., Inc., 2016 WL 1752835 (D. Md. May 3, 2016) ........................................................................................6

Waithaka v. Amazon.com, Inc., 404 F. Supp. 3d 335 (D. Mass. 2019) .............................................................................................22


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

vii DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION



Wickberg v. Lyft, Inc., 356 F. Supp. 3d 179 (D. Mass. 2018) .............................................................................................17

Zawada v. Uber Techs., Inc., 2016 WL 7439198 (E.D. Mich. Dec. 27, 2016) ................................................................................6

Zhenhua Logistics Co. v. Metamining, Inc., 2013 WL 3360670 (N.D. Cal. July 3, 2013) ...................................................................................22

Statutes 9 U.S.C. §§ 1–4 ...........................................................................................................1, 5, 7, 8, 9, 14, 22

28 U.S.C. §§ 2201–02 .............................................................................................................................5

Mass. Gen. L. ch. 149, § 148 ..................................................................................................................5

Mass. Gen. L. ch. 149, § 150 ..................................................................................................................5

Mass. Gen. L. ch. 151, § 1 ......................................................................................................................5

Mass. Gen. L. ch. 151, § 20 ....................................................................................................................5

Other Authorities BUREAU OF TRANSP. STAT., U.S. DEP’T OF TRANSP., 2018 TRANSPORTATION

STATISTICS ANNUAL REPORT (2018), https://tinyurl.com/vmkgaah .................................................9

HAROLD BARGER, THE TRANSPORTATION INDUSTRIES, 1889-1946: A STUDY OF OUTPUT, EMPLOYMENT AND PRODUCTIVITY (1951) .......................................................................10

L.E. Peabody, Forecasting Future Volume of Railway Traffic, in 66 RAILWAY AGE 899 (Samuel O. Dunn et al. eds., 1924) ..........................................................................................10

The New Automobility: Lyft, Uber and the Future of American Cities 13, SCHALLER CONSULTING (July 25, 2018), https://tinyurl.com/vo7vzw7 ...........................................................11

Rail Profile, BUREAU OF TRANSP. STAT., https://tinyurl.com/rsktcdt ...................................................10

Regina R. Clewlow & Gouri Shankar Mishra, Disruptive Transportation: The Adoption, Utilization, and Impacts of Ride-Hailing in the United States, INST. TRANSP. STUD., U.C. DAVIS, Oct. 2017 ...........................................................................................11

SHARON FEIGON & COLIN MURPHY, BROADENING UNDERSTANDING OF THE INTERPLAY AMONG PUBLIC TRANSIT, SHARED MOBILITY, AND PERSONAL AUTOMOBILES (2018) .............10, 11

U.S. ARMY CORPS OF ENG’RS, THE U.S. WATERWAY SYSTEM: 2018 TRANSPORTATION FACTS & INFORMATION (2019) ........................................................................................................10


https://tinyurl.com/rsktcdt

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiff John Capriole is an independent transportation provider who contracts with Uber to

generate leads for his business. Like the vast majority of people who contract with Uber, Plaintiff

agreed to resolve any disputes with Uber in arbitration and on an individual basis. In continued breach

of this agreement, Plaintiff has now filed a First Amended Complaint against Uber on behalf of himself

and other similarly situated drivers.

Plaintiff’s attempt to evade his commitment to arbitrate disputes with Uber should be rejected.

Because the arbitration agreement delegates questions of arbitrability to the arbitrator, the Court’s

jurisdiction is limited to confirming that the parties have an arbitration agreement and then to

compelling individualized arbitration. See, e.g., Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 68–

70 (2010); Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1208–12 (9th Cir. 2016). The arbitration

agreement at issue has been enforced by courts throughout the country, including the Ninth Circuit

(see O’Connor v. Uber Techs., Inc., 904 F.3d 1087, 1092–95 (9th Cir. 2018)), and applies broadly to

“all disputes between” drivers and Uber, including any dispute “arising out of or related to [a driver’s]

relationship with the Company” or regarding any “state or federal wage-hour law,” and thus covers

every claim asserted in this litigation (Decl. of Brad Rosenthal Ex. 1 § 15.3(i)). As the United States

Supreme Court has reiterated repeatedly, the Federal Arbitration Act (“FAA”) requires courts to

enforce arbitration agreements according to their terms. Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407,

1415–19 (2019); Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1619 (2018). And the FAA preempts and

overrides any barriers to enforcement.

While Plaintiff has indicated he intends to argue that the FAA does not apply because the

arbitration agreement appears in a “contract[] of employment of seamen, railroad employees, or any

other class of workers engaged in foreign or interstate commerce” (9 U.S.C. § 1), the caselaw is

overwhelmingly to the contrary. The “class of workers” to which Plaintiff belongs for purposes of the

FAA analysis is “personal passenger-transportation providers,” and that class of workers does not

engage in inherently cross-border activity similar to seamen and railroad employees. See Circuit City

Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001). Indeed, even when these workers happen to cross


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION



state lines, they do so only incidentally, and only within a local area (for example, from Washington,

D.C. to Arlington, Virginia), which is not enough to evade the FAA. See Omaha & Council Bluffs St.

Ry. Co. v. I.C.C., 230 U.S. 324, 336 (1913). And while Plaintiff may contend that he occasionally

transports passengers to and from the airport, the Supreme Court has already held that this type of

transportation does not constitute interstate commerce. See United States v. Yellow Cab Co., 332 U.S.

218, 231–32 (1947), overruled on other grounds by Copperweld Corp. v. Indep. Tube Corp., 467 U.S.

752 (1984); see also Vargas v. Delivery Outsourcing, LLC, 2016 WL 946112, at *4 (N.D. Cal. Mar.

14, 2016).

Accordingly, the Court should compel Plaintiff to arbitrate his claims on an individual basis as

the arbitration agreement’s plain language requires.

II. BACKGROUND

Uber is a technology company that connects individuals in need of transportation (“riders”)

with independent transportation providers searching for passengers (“drivers”).1 Rosenthal Decl. ¶ 4.

Uber provides its technology through a smartphone application (the “Uber App”), which drivers can

license for a service fee. Id. ¶ 6.

To begin using the Uber App to connect with riders, Plaintiff was required to accept the 2015

Technology Services Agreement (the “2015 Agreement”). See id. ¶ 28 & Ex. 1. Upon logging onto

the Uber App for the first time, Plaintiff was presented with a screen that stated: “TO GO ONLINE,

YOU MUST REVIEW ALL THE DOCUMENTS BELOW AND AGREE TO THE CONTRACTS

BELOW.” Id. ¶ 31. Immediately below that text, Plaintiff was presented with a hyperlink to the 2015

Agreement. Id. Clicking the hyperlink opened the 2015 Agreement, which could be reviewed,

beginning to end, on the screen by scrolling through each page, was available to be viewed on a web

browser via computer, and could be printed. Id. To agree, Plaintiff was required to click a button

confirming that “YES, I AGREE.” Id. The text appearing immediately above the “YES, I AGREE”

button stated: “By clicking below, you represent that you have reviewed all the documents above and

that you agree to all the contracts above.” Id.

1 “Drivers” is used herein for convenience. Because a transportation provider may engage another worker to drive his or her vehicle, it is not necessarily true that the transportation provider is a “driver.”


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




After Plaintiff clicked the first “YES, I AGREE” button, he was presented with a second screen

where he was asked to confirm his acceptance. Id. ¶ 32. The second screen states: “PLEASE

CONFIRM THAT YOU HAVE REVIEWED ALL DOCUMENTS AND AGREE TO ALL THE

NEW CONTRACTS.” Id. After Plaintiff reviewed the foregoing text, he could choose between two

buttons labeled “NO” and “YES, I AGREE.” Id. Only after Plaintiff confirmed by clicking “YES, I

AGREE” that he had reviewed the documents and agreed to all the contracts could he use the Uber

platform. Id. Uber’s business records indicate that Plaintiff clicked both “YES, I AGREE” buttons on

March 27, 2016. Id. ¶¶ 30–32.

The first page of the 2015 Agreement advised Plaintiff in bold, capitalized letters that it

contained an arbitration agreement (the “Arbitration Provision”):

IMPORTANT: PLEASE NOTE THAT TO USE THE UBER SERVICES, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE REVIEW THE ARBITRATION PROVISION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH THE COMPANY ON AN INDIVIDUAL BASIS, EXCEPT AS PROVIDED IN SECTION 15.3, THROUGH FINAL AND BINDING ARBITRATION UNLESS YOU CHOOSE TO OPT OUT OF THE ARBITRATION PROVISION…. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE ARBITRATION PROVISION BELOW.

Id. Ex. 1 at 1.

The Arbitration Provision stated that Uber and drivers agree to submit virtually all disputes to

bilateral arbitration:

This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”) and evidences a transaction involving interstate commerce. This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates….

[T]he 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…. [T]his 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 action…. [T]his Arbitration Provision also applies, without limitation, to all disputes between You and the Company or Uber, as well as all disputes between You and the Company’s or Uber’s fiduciaries, administrators, affiliates, subsidiaries, parents, and all successors and


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




assigns of any of them, 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 the Company, including termination of the relationship.

Id. § 15.3(i) (emphasis in original). The Arbitration Provision also contained a delegation clause:

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.

Id. The Arbitration Provision afforded drivers an unfettered right to opt out of arbitration for 30 days

after accepting the 2015 Agreement simply by sending an email to Uber:

Your Right To Opt Out Of Arbitration

Arbitration is not a mandatory condition of your contractual relationship with the Company. If you do not want to be subject to this Arbitration Provision, you may opt out of this Arbitration Provision by notifying the Company in writing of your desire to opt out of this Arbitration Provision….

Should you not opt out of this Arbitration Provision within the 30-day period, you and the Company shall be bound by the terms of this Arbitration Provision.

Id. § 15.3(viii). Thousands of drivers nationwide have exercised their right to opt out of the Arbitration

Provision in the 2015 Agreement, but Plaintiff did not. See id. ¶¶ 33–34.

In January 2020, Plaintiff agreed to a new Platform Access Agreement (the “2020 Agreement”).

See id. ¶ 35 & Ex. 4. When Plaintiff first logged onto the Uber App, he was presented with a screen

titled “TERMS AND CONDITIONS” that stated: “Please review and agree to the documents below.”

Id. ¶ 38. Clicking that hyperlink opened the 2020 Agreement. Id. Like the 2015 Agreement, after

Plaintiff reviewed the 2020 Agreement, he was required to click a button labeled “YES, I AGREE”

and then confirm his acceptance on a subsequent screen with another “YES, I AGREE” button. Id.

¶¶ 38–39.

Like the 2015 Agreement, the 2020 Agreement included an Arbitration Provision (id. Ex. 4

§ 13.1(a)), delegation clause (id. § 13.1(b)), and opt-out procedure (id. § 13.8(a)). Plaintiff accepted

the 2020 Agreement on January 9 (id. ¶ 37) and sent an email to Uber the following day, exercising his

right to opt out of the Arbitration Provision in the 2020 Agreement (id. ¶ 41 & Ex. 7). Although he


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




opted out of the 2020 Agreement’s Arbitration Provision (id.), the 2020 Agreement stated that a driver

remains bound by any existing arbitration agreement then in effect:

If you opt out of this Arbitration Provision and at the time of your receipt of this Agreement you were bound by an existing agreement to arbitrate disputes arising out of or related to your use of our Platform and Driver App, that existing arbitration agreement will remain in full force and effect.

Id. Ex. 4 § 13.8(c).

Notwithstanding the Arbitration Provision, Plaintiff filed a Class Action Complaint on

September 12, 2019, in the United States District Court for the District of Massachussetts, seeking to

represent “all other individuals” who used the Uber App as drivers “in Massachusetts who have not

released all of their claims against Uber.” Dkt. 1 ¶ 5. The Complaint alleged that Uber misclassified

drivers as independent contractors rather than employees and asserted claims for (1) declaratory

judgment, 28 U.S.C. §§ 2201–2202; (2) misclassification, Mass. Gen. L. ch. 149, §§ 148B, 150;

(3) expense-reimbursement violations, id. §§ 148, 148B, 150; (4) minimum-wage violations, id.

ch. 151, §§ 1, 20; and (5) overtime violations, id. ch. 151, §§ 1A, 1B. See id. ¶¶ 40–48. On March 19,

2020, Plaintiff filed a First Amended Class Action Complaint, adding a new claim for paid sick time

under Massachussetts General Laws ch. 149, § 148C. See Dkt. 40 ¶ 49. The district court transferred

the Plaintiff’s action to this Court on March 31, 2020. See Dkt. 56.

III. ARGUMENT

This Court should hold Plaintiff to his contractual obligation to arbitrate, and order him to

submit each of the claims asserted in the First Amended Complaint to bilateral arbitration under the

FAA or, in the alternative, state law.

The FAA governs this dispute because the Arbitration Provision appears in the 2015

Agreement, which is a “contract evidencing a transaction involving commerce.” 9 U.S.C. § 2.

Although Uber anticipates that Plaintiff will argue that he falls within the FAA’s narrow exemption for

“contracts of employment of … class[es] of workers engaged in foreign or interstate commerce”

(id. § 1), that exemption does not apply to the class of workers to which Plaintiff belongs—namely,

personal passenger-transportation providers. These service providers transport passengers, not goods,

and do so locally, not in interstate commerce.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




Under the FAA, a court is typically limited to considering only two “gateway” issues before

compelling arbitration—whether there is a valid arbitration agreement and whether it covers the

dispute. Here, however, the Arbitration Provision contains a delegation clause that clearly and

unmistakably provides that those gateway issues should be resolved by the arbitrator. Under binding

Supreme Court precedent, this delegation clause must be enforced absent a showing that the delegation

clause is itself unenforceable. See Rent-A-Center, 561 U.S. at 72. In any event, both gateway issues

are easily satisfied here. Even if the Court were to conclude that the FAA does not apply, it should still

compel arbitration under the CAA. “Similar to the Federal Act, the Massachusetts Act ‘express[es] a

strong public policy favoring arbitration.’” St. Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345, 349

(2008) (citation omitted). And unlike the FAA, it contains no exemption akin to Section 1.

The Ninth Circuit has already concluded that the Arbitration Provision in the 2015 Agreement

is enforceable (see O’Connor v. Uber Techs., Inc., 904 F.3d 1087, 1092–95 (9th Cir. 2018)), and dozens

of courts have enforced other materially identical versions.2 Plaintiff can offer no reason to depart

from such an overwhelming—and controlling—consensus.

A. The FAA Requires Bilateral Arbitration of Plaintiff’s Claims.

“The FAA reflects the fundamental principle that arbitration is a matter of contract.” Rent-A-

Center, 561 U.S. at 67. Seeking to “overcome judicial hostility to arbitration agreements” (Allied-

2 See, e.g., Mohamed, 848 F.3d at 1208; Grice v. Uber Techs. Inc., 2020 WL 497487, at *4–12 (C.D. Cal. Jan. 7, 2020); Heller v. Rasier, LLC, 2020 WL 413243, at *4–12 (C.D. Cal. Jan. 7, 2020); Gray v. Uber, Inc., 362 F. Supp. 3d 1242, 1245 (M.D. Fla. 2019); Scaccia v. Uber Techs., Inc., 2019 WL 2476811, at *5 (S.D. Ohio June 13, 2019); Okereke v. Uber Techs., Inc., 2017 WL 6336080, at *6 (D. Mass. June 13, 2017); Zawada v. Uber Techs., Inc., 2016 WL 7439198, at *10 (E.D. Mich. Dec. 27, 2016), aff’d, 727 F. App’x 839 (6th Cir. 2018); Suarez v. Uber Techs., Inc., 2016 WL 2348706, at *4 (M.D. Fla. May 4, 2016), aff’d, 688 F. App’x 777 (11th Cir. 2017); Lathan v. Uber Techs., Inc., 266 F. Supp. 3d 1170, 1174 (E.D. Wisc. 2017); Olivares v. Uber Techs., Inc., 2017 WL 3008278, at *3 (N.D. Ill. July 14, 2017); Cavallo v. Uber Techs., Inc., 2017 WL 2362851, at *9–10 (D.N.J. May 31, 2017); Rimel v. Uber Techs., Inc., 246 F. Supp. 3d 1317, 1325–26 (M.D. Fla. 2017); Carey v. Uber Techs., Inc., 2017 WL 1133936, at *8 (N.D. Ohio Mar. 27, 2017); Mumin v. Uber Techs., Inc., 239 F. Supp. 3d 507, 522–26 (E.D.N.Y. 2017); Guan v. Uber Techs., Inc., 236 F. Supp. 3d 711, 727–33 (E.D.N.Y. 2017); Peng v. Uber Techs., Inc., 237 F. Supp. 3d 36, 52–58 (E.D.N.Y. 2017); Lamour v. Uber Techs., Inc., 2017 WL 878712, at *13–14 (S.D. Fla. Mar. 1, 2017); Richemond v. Uber Techs., Inc., 263 F. Supp. 3d 1312, 1317 (S.D. Fla. 2017); Gunn v. Uber Techs., Inc., 2017 WL 386816, at *4 (S.D. Ind. Jan. 27, 2017); Congdon v. Uber Techs., Inc., 226 F. Supp. 3d 983, 986–87 (N.D. Cal. 2016); Micheletti v. Uber Techs., Inc., 213 F. Supp. 3d 839, 845–49 (W.D. Tex. 2016); Lee v. Uber Techs., Inc., 208 F. Supp. 3d 886, 891–94 (N.D. Ill. 2016); Bruster v. Uber Techs., Inc., 188 F. Supp. 3d 658, 663–64 (N.D. Ohio 2016); Varon v. Uber Techs., Inc., 2016 WL 1752835, at *6 (D. Md. May 3, 2016); Sena v. Uber Techs., Inc., 2016 WL 1376445, at *3–7 (D. Ariz. Apr. 7, 2016).


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 272 (1995)), the statute embodies a “liberal federal

policy favoring arbitration” (Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24

(1983)). Because the statute is designed to “move the parties to an arbitrable dispute out of court and

into arbitration as quickly and easily as possible,” courts must resolve “any doubts concerning the scope

of arbitrable issues … in favor of arbitration.” Id. at 22, 24–25.

The “primary substantive provision of the Act” is Section 2. Rent-A-Center, 561 U.S. at 67

(citation omitted). Section 2 provides that “[a] written provision in any … contract evidencing a

transaction involving commerce to settle by arbitration a controversy thereafter arising … 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. Section 2 “requires courts to enforce [arbitration

agreements] according to their terms.” Rent-A-Center, 561 U.S. at 67; accord Epic Sys., 138 S. Ct. at

1621. “By its terms, the Act leaves no place for the exercise of discretion by a district court, but instead

mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an

arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985).

Consistent with these principles, Plaintiff’s claims should be arbitrated pursuant to the plain and

unambiguous terms of the Arbitration Provision.

The FAA governs this dispute because the 2015 Agreement, which contains the Arbitration

Provision, “involv[es] commerce.” 9 U.S.C. § 2; Rosenthal Decl. ¶¶ 6–7, Exs. 1, 4; see, e.g., Mohamed,

848 F.3d at 1208–09 (analyzing enforceability of Uber’s arbitration agreement under the FAA);

Okereke, 2017 WL 6336080, at *5; Scaccia, 2019 WL 2476811, at *5. The FAA also governs this

dispute because the Arbitration Provision explicitly says that it does. Rosenthal Decl. Ex. 1

§§ 15.1, 15.3(i); id. Ex. 4 § 13.1(a). Courts have enforced arbitration agreements under the FAA where

the agreement stipulates to the statute’s application. See, e.g., Uhl v. Komatsu Forklift Co., Ltd., 512

F.3d 294, 302–03 (6th Cir. 2008).

Plaintiff seeks to circumvent this unanimous authority enforcing the Arbitration Provision by

invoking the Section 1 exemption, which states that “nothing herein contained shall apply to contracts

of employment of seamen, railroad employees, or any other class of workers engaged in foreign or

interstate commerce.” 9 U.S.C. § 1. As the Supreme Court has emphasized, because it appears “in a


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




statute that seeks broadly to overcome judicial hostility to arbitration agreements,” “the § 1 exclusion

provision [must] be afforded a narrow construction.” Circuit City, 532 U.S. at 118 (internal quotation

marks and citation omitted). In particular, determining the exemption’s applicability entails a three-

step inquiry. First, the court must identify the “class of workers” to which the plaintiff belongs.

Second, it must determine whether that class of workers is “engaged in foreign or interstate

commerce.”3 And third, the court must decide whether the arbitration agreement is contained in a

“contract[] of employment.” Applying this framework here confirms that Plaintiff does not fall within

the Section 1 exemption—as numerous courts, including in this Circuit, have already concluded. See,

e.g., Grice, 2020 WL 497487, at *9 (“The Court thus concludes that Plaintiff does not fit within the

residual clause of the Section 1 exemption as a ‘transportation worker’ who is ‘engaged in interstate

commerce.’”); Heller, 2020 WL 4413243, at *9 (same); Scaccia, 2019 WL 2476811, at *5 (“[T]he

FAA’s exclusion provision in § 1 does not apply to Plaintiff’s claims.”); Gray v. Uber Techs., Inc.,

2019 WL 1785094, at *2 (M.D. Fla. Apr. 10, 2019).

1. Plaintiff Belongs to a Class of “Personal Passenger-Transportation Workers.”

For purposes of the Section 1 exemption, Plaintiff belongs to a “class of workers” comprising

“personal passenger-transportation providers.” This is consistent with how the parties themselves have

described the work Plaintiff performs using the Uber App. For example, the 2015 Agreement describes

Uber as “provid[ing] lead generation to independent providers of rideshare or peer-to-peer

(collectively, ‘P2P’) passenger transportation services using the Uber Services.” Rosenthal Decl. Ex.

1 at 1 (emphasis added). And the Department of Transportation is in accord, describing the Uber App

as “us[ing] an online platform to connect riders to drivers” who predominantly “us[e] their personal

vehicles.” BUREAU OF TRANSP. STAT., U.S. DEP’T OF TRANSP., 2018 TRANSPORTATION STATISTICS

3 Although some courts have looked only at a particular worker’s activity in evaluating the Section 1 exemption, the text makes clear that the focus is properly on the class of workers. Every court to consider this question has agreed. E.g., Singh v. Uber Techs., Inc., 939 F.3d 210, 227 (3d Cir. 2019) (“[T]he inquiry regarding § 1’s residual clause asks a court to look to classes of workers rather than particular workers ….”); Bacashihua v. U.S. Postal Serv., 859 F.2d 402, 405 (6th Cir. 1988) (“[T]he concern [i]s not whether the individual worker actually engaged in interstate commerce, but whether the class of workers to which the complaining worker belonged engaged in interstate commerce.”); Rosen v. Transx Ltd., 816 F. Supp. 1364, 1371 (D. Minn. 1993) (“The exclusion pertains to classes of workers, not individual workers.”).


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




ANNUAL REPORT 1-13 (2018), https://tinyurl.com/vmkgaah.

This is also supported by the text of Section 1. As the Supreme Court has explained, the

ejusdem generis canon of construction teaches that “the residual clause should be read to give effect to

the terms ‘seamen’ and ‘railroad employees,’ and should itself be controlled and defined by reference

to the enumerated categories of workers which are recited just before it.” Circuit City, 532 U.S. at 115.

Like “seamen” and “railroad employees,” any other class of workers must not be artificially limited to

a particular state or region. And like “seamen” and “railroad employees,” the class of workers here

must reach beyond a particular company’s purported workers to encompass all workers in a mode of

transportation—here, passenger cars.

The caselaw interpreting the Section 1 exemption confirms this. In Gadson v. SuperShuttle

Int’l, 2011 WL 1231311, at *5 (D. Md. Mar. 30, 2011), vac’d on other grounds, Muriithi v. Shuttle

Exp., Inc., 712 F.3d 173 (4th Cir. 2013), for example, the court described airport shuttle drivers as

belonging to a class of workers that “provided ground transportation to airport passengers.” Similarly,

in Sienkaniec v. Uber Technologies, Inc., 401 F. Supp. 3d 870, 872 (D. Minn. 2019), the court

suggested that “the ‘class of workers’ to which [plaintiff] belongs is ‘all Uber drivers in the United

States.’” While these cases described the class of workers too narrowly (for example, limiting it to

workers who transport airport passengers in Gadson, and to drivers who use only the Uber App in

Sienkaniec4), they each recognized the class comprised personal passenger-transportation providers.

2. This Class of Workers Is Not “Engaged in Foreign or Interstate Commerce.”

“Personal passenger-transportation providers” are not “engaged in foreign or interstate

commerce.” As the Supreme Court held in Circuit City, this inquiry comprises two requirements: the

class of workers must be “transportation workers” (532 U.S. at 119), and it must be “actually engaged

in the movement of goods in interstate commerce” in a similar manner to seamen and railroad

employees (id. at 112 (citation omitted)).5 4 Many members of the class of workers “multi-app,” using several different lead-generation apps—often at the same time. See Rosenthal Decl. ¶ 13. 5 In many cases involving the Section 1 exemption, only the first requirement has been at issue. In Palcko v. Airborne Express, Inc., 372 F.3d 588, 590 (3d Cir. 2004), for example, the court considered whether a Field Services Supervisor who “supervis[ed] between thirty and thirty-five drivers who


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




The defining characteristic of “seamen” and “railroad employees” is that they operate a mode

of transportation that is inherently cross-border—as such, they are engaged in interstate commerce.

See Circuit City, 532 U.S. at 114–15. Maritime shipping and railroads each have as their core purpose

long-distance, interstate (and international) transportation of goods, even if some trips are wholly

intrastate. The average freight haul by railroad in 1920 was 308 miles. L.E. Peabody, Forecasting

Future Volume of Railway Traffic, in 66 RAILWAY AGE 899, 900 (Samuel O. Dunn et al. eds., 1924).

The average haul by ship shortly after the FAA’s enactment, meanwhile, was 660 miles. HAROLD

BARGER, THE TRANSPORTATION INDUSTRIES, 1889-1946: A STUDY OF OUTPUT, EMPLOYMENT AND

PRODUCTIVITY 128 (1951). And the inherently cross-border nature of such transportation persists to

the present day. In 2018, the average freight haul of a Class I railroad traversed 1,046 miles, and the

average passenger trip on Amtrak covered 200.1 miles. Rail Profile, BUREAU OF TRANSP. STAT.,

https://tinyurl.com/rsktcdt. The average haul by ship in the same year was 579.5 miles. U.S. ARMY

CORPS OF ENG’RS, THE U.S. WATERWAY SYSTEM: 2018 TRANSPORTATION FACTS & INFORMATION 3

(2019).

Nothing about the work performed by the class of “personal passenger-transportation

providers” is inherently cross-border. On the contrary, the work is inherently local: Crossing state

lines is the exception for these workers, the vast majority of whom perform only “short and

concentrated [trips] in downtown core neighborhoods,” with “[m]any t[aking] place within a single zip

code.” SHARON FEIGON & COLIN MURPHY, BROADENING UNDERSTANDING OF THE INTERPLAY AMONG

PUBLIC TRANSIT, SHARED MOBILITY, AND PERSONAL AUTOMOBILES 1 (2018). Their clientele uses their

services predominantly for transportation to restaurants and cafes, shops, family and community

activities, and bars and parties. See Regina R. Clewlow & Gouri Shankar Mishra, Disruptive

delivered packages from Airborne’s facility near the Philadelphia International Airport to their ultimate destinations in the Philadelphia area” fit within the exemption. There was no dispute that the drivers did; instead, the parties disagreed as to whether “‘management employees’ in the same chain of command” had a sufficient nexus to the drivers’ transportation to themselves constitute “transportation workers.” Id. at 594 n.2; see also, e.g., Lenz v. Yellow Transp., Inc., 431 F.3d 348, 351–52 (8th Cir. 2005) (“The issue before us is simple—whether Lenz, a Customer Service Representative, is a ‘transportation worker’ under § 1 of the FAA ….” (emphasis added)). But these cases are irrelevant here because there is no dispute that Plaintiff is a transportation worker. Rather, the only question is whether he is “‘actually engaged in the movement of goods in interstate commerce,’” similar to seamen and railroad employees.


https://tinyurl.com/rsktcdt

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




Transportation: The Adoption, Utilization, and Impacts of Ride-Hailing in the United States, INST.

TRANSP. STUD., U.C. DAVIS, Oct. 2017, at 11–12. These trips span only a few miles on average and

typically take less than 30 minutes. The New Automobility: Lyft, Uber and the Future of American

Cities 13, SCHALLER CONSULTING (July 25, 2018), https://tinyurl.com/vo7vzw7 (observing that “trips

typically travel 6.1 miles with a duration of 23 minutes” nationwide, with “[t]rips in large, densely-

populated metro areas tend[ing] to be somewhat shorter (4.9 miles)” and “[t]rips in suburban and rural

areas tend[ing] to be somewhat longer in distance (8.7 miles)”); FEIGON, supra, at 1 (“Across the five

regions represented in the TNC trip data, the mean TNC trip was between 2 and 4 miles.”).

These industry-wide trends are consistent with the work performed by drivers using the Uber

App specifically. The average trip generated through the Uber App over the past five years covered

only 6.1 miles and lasted only 16.6 minutes.6 Decl. of Juan Manuel Contreras ¶ 4. And while some

trips crossed state lines, 97.5% did not. Id. This is unsurprising, as the 2015 Agreement expressly

limits drivers’ use of the Uber App to a particular “city or metro area[] in the United States.” Rosenthal

Decl. ¶ 28 & Ex. 1 § 1.10. Even those trips that did cross state lines did so only within a local

community; the average interstate trip procured through the Uber App covered only 13.5 miles and

lasted only 30 minutes. Contreras Decl. ¶ 4. Such incidental cross-border travel within a single

community—for example, from the Newark Airport in New Jersey to New York City, or from

Washington, D.C. to Arlington, Virginia—does not convert the work of personal passenger-

transportation providers into “foreign or interstate commerce.” See Omaha & Council Bluffs, 230 U.S.

at 334, 336 (holding that a street railway between Omaha, Nebraska and Council Bluffs, Iowa was not

subject to the Interstate Commerce Act, which “applies to carriers engaged in the transportation of

passengers or property by railroad,” because it was “local … and for the use of a single community,

even though that community be divided by state lines”).

To be sure, one out-of-Circuit district court has adopted a much broader reading of the “engaged

in foreign or interstate commerce” requirement—one that shows no concern for whether the class of

workers engaged in inherently cross-border transportation. In Cunningham v. Lyft, Inc., 2020 WL 6 The average distance and duration figures were calculated from random sample data. Decl. of Juan Manuel Contreras ¶¶ 4–5, n.1–n.2.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




1503220 (D. Mass. Mar. 27, 2020), the court held that drivers who use the Lyft smartphone application

fall within the Section 1 exemption because “passengers traveling to or from Logan International

Airport are in the ‘continuity of movement’ of a longer trip,” and “Plaintiffs help facilitate that

movement, as the first or last leg of the journey, including into or out of Massachusetts.” Id. at *7

(citations omitted). But this view is irreconcilable with the Supreme Court’s decision in Yellow Cab,

which held “that a traveler intending to make an interstate rail journey begins his interstate movement

when he boards the train at the station and that his journey ends when he disembarks at the station in

the city of destination,” such that “[w]hat happens prior or subsequent to that rail journey, at least in

the absence of some special arrangement, is not a constituent part of the interstate movement.” 332

U.S. at 231–32; see also Vargas, 2016 WL 946112, at *4 (concluding that workers who delivered

luggage from airports to passengers’ homes did not fall within the Section 1 exemption even though

“there is continuity of movement between the interstate travel of the luggage and other items … to the

intrastate deliveries made by Plaintiff”); Grice, 2020 WL 497487, at *7 (“As in Vargas, here, neither

Plaintiff nor Uber is ‘in the business of shipping goods across state lines,’ ‘even though it delivers

[luggage and persons] that once travelled interstate.’” (citations omitted)); Bryant v. Tristate Logistics

of Ariz., LLC, 2020 WL 1455770, at *4 (D. Ariz. Mar. 25, 2020) (rejecting the view that

“couriers/warehouse workers who never made deliveries outside Arizona, but handled goods that

traveled from other states,” fall within the exemption). And while some courts have held that intrastate

transportation workers may fall within the exemption where the “employer’s business is centered

around the interstate transport of goods” (Rittmann v. Amazon.com, Inc., 383 F. Supp. 3d 1196, 1201

(W.D. Wash. 2019) (emphasis added)), Plaintiff does not allege that Uber is such a company (see Dkt.

40 ¶ 13 (alleging that Uber “provides transportation service in cities throughout the country”)).

In any event, Plaintiff is not “engaged in foreign or interstate commerce” within the meaning

of the Section 1 exemption because he transports only passengers—not goods. See Circuit City, 532

U.S. at 121 (noting “Congress’ demonstrated concern with transportation workers and their necessary

role in the free flow of goods”). Nearly every court to address this issue has agreed that the Section 1

exemption does not apply to classes of workers that transport only people. See, e.g., Grice, 2020 WL

497487, at *7 (“Plaintiff has not demonstrated that the intrastate transportation of passengers is an


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




activity ‘within the flow of interstate commerce’ within the meaning of Section 1 of the FAA.”);

Scaccia, 2019 WL 2476811, at *4 (“When driving with Uber, Plaintiff transported passengers to and

fro, sometimes in interstate commerce, but he did not transport goods in interstate commerce. Such

work places him outside ‘any other class of workers engaged in … interstate commerce’ described in

the FAA’s § 1 exclusions from mandatory arbitration.”); Pelayo v. Platinum Limousine Servs., Inc.,

2015 WL 9581801, at *12 n.6 (D. Haw. Dec. 30, 2015) (holding that limousine drivers do not fall

within Section 1 because they “are not seamen, railroad employees, or otherwise engaged in the

movement of goods in interstate commerce”), abrogated on other grounds sub. nom. Campbell v. City

of L.A., 903 F.3d 1090 (9th Cir. 2018); Kowalewski v. Samandarov, 590 F. Supp. 2d 477, 483–84

(S.D.N.Y. 2008) (finding “the involvement of physical goods to be an indispensable element to being

‘engaged in commerce in the same way that seamen and railroad workers are’” (citation omitted)).7

This Court should do the same.

It would be especially incongruent with the FAA’s broader structure and purpose if Plaintiff

were deemed exempt from arbitration. As the Supreme Court has explained, a motivating reason for

the Section 1 exemption was to accommodate other “federal legislation providing for the arbitration of

disputes” involving seamen and railroad employees. Circuit City, 532 U.S. at 121. In other words,

Section 1 was not intended to exclude classes of workers from arbitration altogether, but rather to

funnel them into specialized, industry-specific arbitration regimes. But there is no such regime for

personal passenger-transportation providers. As a result, the interpretation of the Section 1 exemption

urged by Plaintiff would have the perverse effect of establishing that class of workers as unique among

all workers in being completely exempt from any and all forms of arbitration under federal law.

3. The Arbitration Provision Does Not Appear in a “Contract[] of Employment.”

Irrespective of Plaintiff’s cross-border transportation, the Section 1 exemption does not apply

to Plaintiff because the 2015 Agreement is not a “contract[] of employment.” 9 U.S.C. § 1. In New 7 The Third Circuit disagreed with this overwhelming authority, considering itself bound by decades-old Circuit precedent. See Singh, 939 F.3d at 222 (“All sides agree that, as it stands, our decisions in Tenney, Greyhound I, and Greyhound II are unequivocal that the residual clause of § 1 excludes the contracts of employment of transportation workers who transport passengers from the FAA.”). Despite this, the Third Circuit did not conclude that the plaintiff did fall within the Section 1 exemption, instead “remanding this issue to the District Court” for discovery. Id. at 228.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019), the Supreme Court held that “Congress used the term

‘contracts of employment’” in the FAA “to capture any contract for the performance of work by

workers.” Id. at 541; see also id. at 543–44 (“When Congress enacted the Arbitration Act in 1925, the

term ‘contracts of employment’ referred to agreements to perform work.”). But not every contract—

or even every contract that contemplates the performance of work—is a contract “for” the performance

of work. One example is a license. A license is a “contract that authorizes access to … information or

informational rights, but expressly limits the access or uses authorized or expressly grants fewer than

all rights in the information.” Uniform Computer Information Transactions Act § 102.

The 2015 Agreement clearly is a license to use Uber’s software, not an “agreement[] to perform

work.” Indeed, it specifically provides that it merely grants drivers “a personal, non-exclusive, non-

transferable license to install and use the Driver App on Your Device.” Rosenthal Decl. Ex. 1 § 2.6.2

(emphasis added). And, as is typical of a license, it grants drivers access to Uber’s online lead-

generation platform (id. § 5.1), subject to limits and restrictions on how they may use the platform and

the information contained thereon, including restrictions on a driver’s ability to “modify or make

derivative works based upon the Uber Services or the Driver App,” to “reverse engineer, decompile,

modify, or disassemble the Uber Services or Driver App,” and to “improperly use the Uber Services or

Driver App, including … improperly obtaining data from the Uber Services or Driver App” (id. § 5.2).

Although the 2015 Agreement permits drivers to use the Uber App to generate leads and

connect with riders in the course of their independent business operations, it does not require them to

perform any work at all. See id. § 2.4 (reserving to drivers “the sole right to determine when and for

how long [they] will utilize the Driver App or the Uber Services,” as well as “the option, via the Driver

App, to attempt to accept or to decline or ignore a User’s request for Transportation Services via the

Uber Services, or to cancel an accepted request for Transportation Services via the Driver App”). As

a result, the 2015 Agreement is not a “contract[] of employment” and thus its Arbitration Provision is

not subject to the Section 1 exemption. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25

n.2 (1991) (holding that “it would be inappropriate to address the scope of the § 1 exclusion because

the arbitration clause being enforced here is not contained in a contract of employment,” but rather in

a “securities registration application”); Harrington v. Atlantic Sounding Co., 602 F.2d 113, 121 (2d


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




Cir. 2010) (“[A]rbitration agreements such as the one at issue in this case do not constitute ‘contracts

of employment’ where the arbitration agreement is ‘not contained’ in a broader employment contract

between the parties.”).

B. The Class Action Waiver Is Valid and Enforceable.

Although the Arbitration Provision is binding and enforceable, it expressly excludes from its

scope any questions regarding the enforceability of the parties’ class action waiver, which are for the

Court to decide. Rosenthal Decl. Ex. 1 § 15.3(i) (excepting class action waiver from delegation clause);

accord id. Ex. 4 § 15.2.1 (same). To remain faithful to the parties’ agreement, the Court should enforce

the Arbitration Provision’s class waiver and order the parties to individual arbitration. See O’Connor,

904 F.3d at 1094 (enforcing class waiver in the Arbitration Provision).

In Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010), the Supreme Court held

that “a party may not be compelled under the FAA to submit to class arbitration unless there is a

contractual basis for concluding that the party agreed to do so.” Id. at 684; accord Lamps Plus, 139

S. Ct. at 1415, 1418–19 (courts may not compel parties to arbitrate in any manner that is “markedly

different from … traditional individualized arbitration” and that “interferes with [the] fundamental

attributes of arbitration”—informality, speed, and cost-efficiency—unless the parties expressly agreed

to do so). Far from agreeing to class treatment or class arbitration, the parties here expressly prohibited

class claims. And in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), the Supreme Court

affirmed the enforceability of class waivers in FAA-governed arbitration agreements, reaffirming the

bedrock principle that arbitration agreements must be enforced as written. Id. at 352. The Supreme

Court also explained that class arbitration was inconsistent with the fundamental attributes of

arbitration as contemplated by the FAA. Id. at 348; accord Am. Express Co. v. Italian Colors

Restaurant, 570 U.S. 228, 233 (2013). And more recently, in Lamps Plus, the Court held that, under

the FAA, courts cannot compel arbitration on a classwide basis where the arbitration agreement in

question is ambiguous (let alone silent) on the issue. 139 S. Ct. at 1415. “Class arbitration is not only

markedly different from the ‘traditional individualized arbitration’ contemplated by the FAA, it also

undermines the most important benefits of that familiar form of arbitration.” Id. (citing Epic Sys., 138

S. Ct. at 1623).


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




Consistent with this long line of precedent favoring individual arbitration, the Court should

require Plaintiff to arbitrate on an individual basis pursuant to the class action waiver. That provision

provides: “You and the Company agree to resolve any dispute that is in arbitration on an individual

basis only, and not on a class, collective action, or representative basis.” Rosenthal Decl. Ex. 1

§ 15.3(v); accord id. Ex. 4 § 15.2.4. The class action waiver is explicit that that arbitration must

proceed on a non-class basis, and that is how the Court should order the parties to proceed. See supra

pp. 6–7 & n.2 (collecting cases that have enforced the Arbitration Provision).

C. Plaintiff Agreed to Arbitrate Any Disputes with Uber.

Plaintiff accepted the Arbitration Provision in the 2015 Agreement, did not exercise his right to

opt out, and remained bound by that provision when he was presented with the 2020 Agreement.

See supra pp. 2–4. After accepting the 2020 Agreement, Plaintiff sent an email to Uber exercising his

right to opt out of the Arbitration Provision in that agreement. Rosenthal Decl. ¶ 41 & Ex. 7. To the

extent Plaintiff’s opt-out was effective as to the 2020 Agreement, it did not terminate the parties’

existing agreement to arbitrate all disputes pursuant to the Arbitration Provision in the 2015 Agreement.

The opt-out provision in the 2020 Agreement expressly reflects the parties’ intent to preserve existing

agreements to resolve disputes through arbitration:

If you opt out of this Arbitration Provision and at the time of your receipt of this Agreement you were bound by an existing agreement to arbitrate disputes arising out of or related to your use of the Uber Services and Driver App, that existing arbitration agreement will remain in full force and effect.

Id. Ex. 4 § 15.2.8 (emphases added). Pursuant to this provision, opting out of the Arbitration Provision

in the 2020 Agreement manifested Plaintiff’s choice not to arbitrate disputes pursuant to the modified

terms of the 2020 Agreement; but any “existing arbitration agreement”—i.e., the Arbitration Provision

in the 2015 Agreement—“remain[s] in full force and effect” for disputes “arising out of or related to

[a driver’s] use of the Uber Services and Driver App.” Id.; see, e.g., Wickberg v. Lyft, Inc., 356 F.

Supp. 3d 179, 185 (D. Mass. 2018) (holding that plaintiff was bound by earlier arbitration agreement

where he opted out of subsequent agreement which expressly provided that “opting out of this


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




arbitration provision has no effect on any previous … arbitration agreements that you may have with

Lyft”); see also Lee, 208 F. Supp. 3d at 893 & n.8 (holding that plaintiffs’ decision to opt out of

subsequent arbitration agreement “ha[d] no bearing on the arbitrability of claims they had asserted

based on earlier Agreements as to which they had not opted out of arbitration”).

Even if Plaintiff had not opted out, he would have remained bound by the Arbitration Provision

in the 2015 Agreement, because the 2020 Agreement does not apply to claims that were pending in

litigation and subject to an arbitration agreement when that agreement was presented to drivers in

January 2020:

Impact on Pending Litigation: This Arbitration Provision shall not affect your standing with respect to any litigation against us brought by you or on your behalf that is pending in a state or federal court or arbitration as of the date of your receipt of this Arbitration Provision (“pending litigation”). Therefore: …. If, at the time of your receipt of this Agreement, you were bound by an existing arbitration agreement with us, that arbitration agreement will continue to apply to any pending litigation, even if you opt out of this Arbitration Provision.

Rosenthal Decl. Ex. 4 § 13.2(d) (emphasis added). Because Plaintiff remains bound by the Arbitration

Provision in the 2015 Agreement (see supra pp. 2–4), his claims must be arbitrated.

D. All Other Questions Are Reserved for Arbitration.

The Supreme Court has “recognized that parties can agree to arbitrate gateway questions of

arbitrability, such as whether the parties have agreed to arbitrate or whether their agreement covers a

particular controversy.” Rent-A-Center, 561 U.S. at 68–69 (quotation marks omitted). Like “any

other” provision in an arbitration agreement, these “delegation provision[s]” must be “enforce[d] …

according to their terms.” Id. at 67–68, 70.

Here, the Arbitration Provision contains a clear and unmistakable delegation clause stating that

all disputes “relating to interpretation or application of this Arbitration Provision, including the

enforceability, revocability or validity of the Arbitration Provision …. shall be decided by an Arbitrator

and not by a court.” Rosenthal Decl. Ex. 1 § 15.3(i); accord id. Ex. 4 § 15.2.1. The Ninth Circuit in

Mohamed already concluded that a nearly identical arbitration agreement “clearly and unmistakably

delegated the question of arbitrability to the arbitrator,” and courts “are required to enforce these


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




agreements ‘according to their terms.’” 848 F.3d at 1208–12. Because the FAA governs this dispute,

and because the 2015 Agreement includes a delegation clause, there is no other work for the Court to

do but compel arbitration. Id.

1. The Gateway Issues Under the FAA Have Been Satisfied.

Even if the Court considers questions concerning the scope or enforceability of the Arbitration

Provision (it should not), the FAA still requires arbitration. Two “gateway” issues determine whether

to compel arbitration: (1) whether there exists a valid agreement to arbitrate between the parties; and

(2) whether the agreement covers the dispute. PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 407

n.2 (2003); see also Moses H. Cone, 460 U.S. at 24–25 (“[A]ny doubts concerning the scope of

arbitrable issues should be resolved in favor of arbitration.”). The 2015 Agreement meets both.

a) There Exists a Valid Agreement to Arbitrate Between Uber and Plaintiff.

“In determining whether parties have agreed to arbitrate a dispute, [the Court] appl[ies]

general state-law principles of contract interpretation, while giving due regard to the federal policy in

favor of arbitration by resolving ambiguities as to the scope of arbitration in favor of arbitration.”

Mundi v. Union Sec. Life Ins. Co., 555 F.3d 1042, 1044 (9th Cir. 2009) (internal quotation marks and

citation omitted).

Under Massachusetts law, whether the parties formed a contract turns on (1) “whether the

contract terms were reasonably communicated to the plaintiff[];” and (2) “whether those terms were

accepted and, if so, the manner of acceptance.” Cullinane v. Uber Techs., Inc., 893 F.3d 53, 62 (1st

Cir. 2018). Basic principles of contract formation do not change merely because Plaintiff and Uber

made their agreement electronically. See Ajemian v. Yahoo!, Inc., 987 N.E.2d 604, 612 (Mass. App.

Ct. 2013) (“We see no reason to apply different legal principles simply because a forum selection or

limitations clause is contained in an online contract.”).

As Judge Talwani already ruled in connection with Defendants’ Motion to Transfer Venue,

Plaintiff had reasonable notice of, and conveyed his assent to, the 2015 Agreement when he signed up

to use the Uber App on March 27, 2016. See Dkt. 56 at 7–10; accord O’Connor, 904 F.3d at 1092–95

(upholding the enforceability of the Arbitration Provision in the 2015 Agreement); see also Booth v.

Quantum3D, Inc., 2005 WL 1512138, at *6 (N.D. Cal. June 15, 2005) (Chen, J.) (“[T]he doctrine [of


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




the law of the case] applies as much to the decisions of a coordinate court in the same case as to a

court’s own decisions. Federal courts routinely apply law-of-the-case principles to transfer decisions

of coordinate courts.” (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988));

accord Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012).

First, the terms of the Arbitration Provision were “reasonably communicated.” When Plaintiff

signed up to use the Uber App, he was presented with a conspicuous hyperlink to the 2015 Agreement.

Dkt. 56 at 9–10; Rosenthal Decl. ¶¶ 28, 31. When he clicked that link, he would have seen in bold,

capital text on the first page of the 2015 Agreement that the Agreement contained an Arbitration

Provision, and that he could opt out. Rosenthal Decl. Ex. 1 at 1. Plaintiff twice confirmed that he

accepted the 2015 Agreement by clicking a button labeled “YES, I AGREE.” See id. ¶¶ 30–32. The

Agreement was then delivered to Plaintiff’s online portal, where he could review it at his leisure. Id.

Ex. 1 § 15.3(viii). Plaintiff repeated a nearly identical process to confirm his acceptance of the 2020

Agreement. Id. ¶¶ 38–39.

Plaintiff may contend that he and Uber did not form a contract because the First Circuit held

that Uber’s 2013 rider agreement did not conspicuously display the link to that rider. See Cullinane,

893 F.3d at 63. But, as Judge Talwani concluded, the 2015 driver agreement at issue here is more

conspicuous than the agreement at issue in Cullinane because the sign-up process (1) included a

conspicuous hyperlink to the 2015 Agreement, and (2) alerted Plaintiff that he would be agreeing to

the 2015 Agreement in a large and prominent display distinct from the font and colors used for other

terms throughout the sign-up process. See Dkt. 56 at 8–10 (concluding that there are “critical

differences” between the 2015 Agreement and the agreement at issue in Cullinane, and that the 2015

Agreement “conform[s] with First Circuit precedent and with Ajemian’s definition of reasonable

communication”). Plaintiff has no colorable claim that the contract terms were not reasonably

communicated to him. See Okereke, 2017 WL 6336080, at *6 (finding that plaintiff “had reasonable

notice of the terms of the arbitration provision” and “manifested acceptance to its terms” where the

Uber App presented the Services Agreement to plaintiff in a substantially identical format).

Second, Plaintiff accepted the 2015 Agreement by twice confirming that he reviewed and

accepted the 2015 Agreement. Dkt. 56 at 9–10 (“Capriole agreed, twice, that he had reviewed the


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




Agreement and agreed to the contract”); accord O’Connor, 904 F.3d at 1092–95; Meyer v. Uber Techs.,

Inc., 868 F.3d 66, 75 (2d Cir. 2017) (courts “routinely uphold” agreements when “the user has

affirmatively assented to the terms of agreement by clicking ‘I agree’”); Awuah v. Coverall N. Am.,

Inc., 703 F.3d 36, 44 (1st Cir. 2012) (“In Massachusetts courts, it has long been the rule that ‘[t]ypically,

one who signs a written agreement is bound by its terms whether he reads and understands them or

not.’”); Bekele v. Lyft, Inc., 199 F. Supp. 3d 284, 297 (D. Mass. 2016), aff’d, 918 F.3d 181 (1st Cir.

2019) (holding that plaintiff “manifested assent … three times over” by “click[ing] the prominent ‘I

accept’ button … on three separate occasions”). These confirmations were clear and conspicuous. See

Dkt. 56 at 9–10; Rosenthal Decl. ¶¶ 30–32.

b) The Arbitration Provision Covers This Dispute.

Because a presumption of arbitrability exists where a contract contains an arbitration

agreement, a motion to compel arbitration must be granted when it cannot “be said with positive

assurance that the arbitration [agreement] is not susceptible of an interpretation that covers the asserted

dispute.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986) (quotation marks

omitted). “Doubts should be resolved in favor of coverage.” Id. (quotation marks omitted).

The Arbitration Provision here plainly covers the misclassification, wage-and-hour, and sick

leave claims asserted in Plaintiff’s First Amended Complaint against both Uber and Uber’s Chief

Executive Officer, Dara Khosrowshahi. See Rosenthal Decl. Ex. 1 § 15.3(i) (“[T]his Arbitration

Provision applies, without limitation, to all disputes between You and the Company or Uber, as well

as all disputes between You and the Company’s or Uber’s fiduciaries, administrators, [or] affiliates.”).

The Arbitration Provision requires the parties to arbitrate “any disputes, actions, claims or causes of

action arising out of or in connection with this Agreement or the Uber Services,” and applies “without

limitation [to] disputes arising out of or relating to … [Plaintiff’s] relationship with [Uber] … [and]

disputes regarding any city, county, state or federal wage-hour law.” Id. §§ 15.2–15.3. Plaintiff’s four

causes of action each arise out of his relationship with Uber, his use of the Uber App, and Uber’s

compliance with Massachusetts labor laws.

Plaintiff ignores the broad scope of his Arbitration Provision and instead asserts that he cannot

be compelled to arbitrate because he is seeking a public injunction. See Dkt. 4 at 15. This argument


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




fails for several reasons.

First, the parties have delegated this question to the arbitrator. See Rosenthal Decl. Ex. 1

§ 15.3(i); see, e.g., Revitch v. Uber Techs., Inc., 2018 WL 6340755, at *5–6 (C.D. Cal. Sept. 5, 2018);

Devries v. Experian Info. Sols., Inc., 2017 WL 2377777, at *3 (N.D. Cal. June 1, 2017). And requests

for public injunctions can be arbitrated. Plaintiff invokes McGill v. Citibank, N.A., 393 P.3d 85

(Cal. 2017), but that case does not govern Plaintiff’s claims under Massachusetts law. In any event,

the “McGill rule does not prohibit[] the arbitration of public injunctions. It merely prohibits the waiver

of the right to pursue public injunctive relief in any forum.” Blair v. Rent-A-Center, Inc., 928 F.3d 819,

827 (9th Cir. 2019) (emphasis added). The Arbitration Provision here does not prevent Plaintiff from

“pursu[ing] public injunctive relief in any forum.”8 Id. And Plaintiff’s entire case is subject to

arbitration, regardless of the type of relief he seeks. See Rosenthal Decl. Ex. 1 § 15.3.9 If Plaintiff

could avoid arbitration simply by electing to pursue certain remedies, that would undermine the

enforceability of virtually all arbitration agreements.

Second, as the transferring Court held, “unlike the consumer protection statutes at issue in

McGill, the Massachusetts Wage Act includes no provisions for public injunctive relief.” Dkt. 41 at 4.

“Instead, the statutory scheme allows a plaintiff to ‘institute and prosecute in his own name and on his

own behalf, or for himself and for others similarly situated, a civil action for injunctive relief, for any

damages incurred, and for any lost wages and other benefits[.]’” Id. (quoting Mass. Gen. L. ch. 149,

§ 150). In short, the Massachusetts statute does not authorize an “injunction for the public benefit.”

Id.

Third, Plaintiff is not seeking a public injunction because he seeks relief that benefits primarily

8 The parties did agree to waive classwide injunctive relief, which is enforceable under the FAA. To the extent McGill purports to prohibit such waivers, it is preempted by the FAA. In Epic Systems, the Supreme Court held that the FAA “protect[s] pretty absolutely” the agreement of parties to arbitrate and “to use individualized rather than class or collective action procedures.” 138 S. Ct. at 1621. A contract cannot be unenforceable “just because it requires bilateral arbitration.” Id. at 1623 (emphasis omitted). 9 Because Plaintiff’s motion for a preliminary injunction would decide the merits of his case, it would be inappropriate for this Court to address that motion before sending this case to the arbitrator. See Zhenhua Logistics (Hong Kong) Co. v. Metamining, Inc., 2013 WL 3360670, at *2–3 (N.D. Cal. July 3, 2013) (finding it “appropriate for the Court to defer to the arbitral process which was agreed upon by the parties” when deciding a motion “requires the Court to invade the province of the arbitrator who may well consider those same issues in deciding whether interim relief is warranted”).


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




himself and, in the event a class is certified, other class members. See Dkt. 11 at 6–7; Revitch, 2018

WL 6340755, at *5–6 (concluding that class of riders and drivers was not seeking public injunctive

relief, but relief for a class of allegedly aggrieved individuals); Magana v. DoorDash, Inc., 343

F. Supp. 3d 891, 901 (N.D. Cal. 2018) (concluding that delivery driver alleging misclassification claim

on behalf of all DoorDash drivers was not seeking public injunctive relief).

* * *

The Court need not—and should not—confront these issues. Each party agreed to arbitrate

disputes with Uber on an individual basis, and the Arbitration Provision contains a valid delegation

clause. Rosenthal Decl. Ex. 1 § 15.3(i). Accordingly, under the FAA, any challenges to the validity

or scope of the Arbitration Provision must be presented to the arbitrator. See 9 U.S.C. § 4; Rent-A-

Center, 561 U.S. at 68–70. This Court should therefore compel to arbitration all claims asserted by

Plaintiff.

E. Even if the FAA Does Not Apply, the Court Should Compel Arbitration of Plaintiff’s Claims Under State Law.

If the Court determines that the FAA does not govern the Arbitration Provision, Uber requests

that the Court compel Plaintiff to arbitrate his claims under Massachusetts law.

“When a contract with an arbitration provision falls beyond the reach of the FAA, courts look

to state law to decide whether arbitration should be compelled nonetheless.” Breazeale v. Victim Servs.,

Inc., 198 F. Supp. 3d 1070, 1079 (N.D. Cal. 2016), aff’d, 878 F.3d 759 (9th Cir. 2017); see also

Rittmann, 383 F. Supp. 3d at 1202. The 2015 Agreement evinces an intent to arbitrate independent of

the choice-of-law provision. Further, Section 15.3(ix) provides that if any provision is unenforceable,

the remainder of the Arbitration Provision is enforceable. Pursuant to Section 15.1 (Governing Law),

if the FAA does not govern, normal choice-of-law principles apply. Rosenthal Decl. Ex. 1 § 15.1; see,

e.g., Waithaka v. Amazon.com, Inc., 404 F. Supp. 3d 335, 343–44 (D. Mass. 2019) (applying

Massachussetts law where the “parties clearly agreed to arbitrate” but “explicitly indicate[d] that

Washington [law] w[ould] not apply to the arbitration agreement”); Diaz v. Michigan Logistics Inc.,

167 F. Supp. 3d 375, 381 (E.D.N.Y. 2016) (applying New York law where “[t]he detailed arbitration

provision clearly demonstrate[d] the parties’ intent to arbitrate disputes” even though the agreement


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




“contain[ed] no general or otherwise applicable choice of law provision”); Atwood v. Rent-A-Ctr. E.,

Inc., 2016 WL 2766656, at *3 (S.D. Ill. May 13, 2016) (“[W]hen the contract says that the [FAA]

applies and mentions no other law,” the arbitration agreement “remains viable” even “if the [FAA]

doesn’t apply, ... and the only question becomes what state’s law applies to the contract to arbitrate.”).

Here, Massachusetts law should apply because Plaintiff resides in Massachusetts, entered into

the relevant agreements in Massachusetts, and asserts claims under Massachusetts law. See, e.g.,

Bekele, 199 F. Supp. 3d at 294 n.4 (concluding that Massachusetts law should apply to determine

validity of arbitration clause where it had the “most significant relationship” to the agreement between

Lyft and the driver); John T. Callahan & Sons, Inc. v. Dykeman Elec. Co., 266 F. Supp. 2d 208, 230

(D. Mass. 2003). The Arbitration Provision is fully enforceable under Massachusetts law, which has

no transportation worker exemption. For a valid arbitration agreement to exist under Massachusetts

law, the Court must find: (1) a written agreement exists; (2) the disputed question falls within the scope

of that agreement; and (3) the party seeking arbitration has not waived its right to arbitration. See

Ellerbee v. GameStop, Inc., 604 F. Supp. 2d 349, 353 (D. Mass. 2009) (finding valid agreement to

arbitrate). Here, as stated above, a valid agreement exists, see Section III.D.1.a, and the disputed claims

fall within the scope, see Section III.D.1.b. And there is no argument Defendants waived their right to

seek arbitration as they are moving to compel arbitration now.10

10 To the extent this Court finds that the FAA does not apply and that the class waiver is unenforceable, any claims that may not be arbitrated on an individual basis must be tried in a court of law in accordance with the parties’ agreement. See Rosenthal Decl. Ex. 1 § 15.3(v) (“In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.”).


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




IV. CONCLUSION

Plaintiff has agreed to arbitrate his claims as well as all threshold issues related to the validity

and enforceability of the Arbitration Provision. The Court should therefore grant Uber’s motion to

compel arbitration.

Dated: April 6, 2020 GIBSON, DUNN & CRUTCHER LLP

By: /s/ Theane Evangelis Theane Evangelis

Attorneys for UBER TECHNOLOGIES, INC. and DARA KHOSROWSHAHI


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




CERTIFICATE OF SERVICE

I hereby certify that on this 6th day of April, 2020, I filed the foregoing document with this

Court using the CM/ECF filing system. This system sends notifications of such filing and service to

all counsel of record.

GIBSON, DUNN & CRUTCHER LLP

By: /s/ Theane Evangelis Theane Evangelis

Attorneys for UBER TECHNOLOGIES, INC. and DARA KHOSROWSHAHI


GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR., … · CASE NO. 3:20-CV-02211-EMC Gibson,...

Documents

Transcript of GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR., … · CASE NO. 3:20-CV-02211-EMC Gibson,...