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Guan v. Uber Technologies, Inc.

United States District Court, E.D. New York

February 23, 2017

SAIZHANG GUAN and LONGBIN LI Plaintiff,
v.
UBER TECHNOLOGIES, INC., Defendant.

          MEMORANDUM & ORDER

          PAMELA K. CHEN United States District Judge

         Plaintiffs are car service drivers (“drivers”) who have brought this lawsuit, as a putative class action, alleging breach of contract by Defendant Uber Technologies, Inc. (“Defendant” or “Uber”). Before the Court is Defendant's motion to compel arbitration. For the reasons stated herein, the Defendant's motion is GRANTED, and this action is stayed pending arbitration.

         BACKGROUND I. FACTUAL BACKGROUND

         A. Plaintiffs' Agreements with Uber

         Uber is a technology company that allows drivers and potential riders to connect through a smartphone application (the “Uber App”). (Dkt. 21, Ex. A, Colman Declaration (“Colman Decl.”), at ¶ 3.)[1] In New York City, before drivers can use the Uber App to find riders, they must enter into an agreement with Uber USA, LLC, a wholly owned subsidiary of Uber. (Id. at ¶ 7). Drivers using the Uber App can hire other drivers to transport riders on their behalf under their Uber accounts. (Id.) But all drivers must accept a “Driver Addendum, ” which incorporates by reference the operative arbitration provision. (Id.)

         When Plaintiffs signed up to use the Uber App, [2] the operative agreement was the “Software License and Online Services Agreement dated April 3, 2015 (the “April 2015 Services Agreement”) along with the Driver Addendum to Software License and Online Services Agreement dated November 10, 2014 (the “November 2014 Driver Addendum”). (Colman Decl., Exs. C & D.) New drivers had to accept these agreements to begin working. (Colman Decl., at ¶ 8.) The April 2015 Services Agreement contained a clause stating that Uber could “modify the terms and conditions of this Agreement or the Driver Addendum at any time” and that “by using the Uber Services, or downloading, installing, or using the Driver app, Customer [i.e., the driver] is bound by any future amendments and additions to this Agreement.” (Colman Decl., Ex. C, at § 14.1.)

         On or about December 11, 2015, Uber issued an updated Services Agreement and Driver Addendum (Colman Decl., Exs. E & F, (“December 2015 Services Agreement” and “December 2015 Driver Addendum”)), and once again drivers had to accept the updated Agreement and Addendum to continue working. (Colman Decl., at ¶ 9.) The two Services Agreements are substantially similar, in relevant part.[3] The first page of the December 2015 Services Agreement contains a paragraph in bold, capitalized text, alerting the reader to the relevant arbitration provision (“Arbitration Provision”), which is provided in full later in the December 2015 Services Agreement:

IMPORTANT: PLEASE NOTE THAT TO USE THE UBER SERVICES AND THE ASSOCIATED SOFTWARE, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE REVIEW THE ARBITRATION PROVISION SET FORTH BELOW IN SECTION 15.3 CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH UBER 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. BY VIRTUE OF YOUR ELECTRONIC EXECUTION OF THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING SECTION 15.3) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 15.3 BELOW.

(Colman Decl., Ex. E.) The Arbitration Provision itself starts on page 16 of the Services Agreement (if viewed on a computer), and is eight pages long. It contains the following paragraph in bold, capitalized text:

WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ABRITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS - INCLUDING BUT NOT LIMITED TO AN ATTORNEY - REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.

(Id. at § 15.3.) In a subsection labeled “IMPORTANT, ” the Arbitration Provision informs drivers that they will be required to “resolve any claim that [they] may have against Uber on an individual basis, except as provided below, pursuant to the terms of the Agreement unless [they] choose to opt out of the Arbitration Provision, ” and that the provision “preclude[s] [them] from bringing any class, collective, or representative actions [except under California's Private Attorneys General Act of 2004 (“PAGA”)] against Uber” or from participating in any such actions. (Id.)

         It specifies that “[u]nless the law requires otherwise, as determined by the Arbitrator based upon the circumstances presented, [the driver] [would] be required to split the cost of any arbitration with Uber.” (Id.). In a subsection entitled “Paying for the Arbitration, ” this provision is further qualified:

Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law (i.e., a party prevails on a claim that provides for the award of reasonable attorney fees to the prevailing party). In all cases where required by law, Uber will pay the Arbitrator's and arbitration fees. If under applicable law Uber is not required to pay all of the Arbitrator's and/or arbitration fees, such fee(s) will be apportioned equally between the Parties or as otherwise required by applicable law. However, You will not be required to bear any type of fee or expense that You would not be required to bear if You had filed the action in a court of law.[4] Any disputes in that regard will be resolved by the Arbitrator as soon as practicable after the Arbitrator is selected, and Uber shall bear all of the Arbitrator's and arbitration fees until such time as the Arbitrator resolves any such dispute.

Id. at § 15.3(vi).

         The Arbitration Provision further provides:

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. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse You from utilizing any informal procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration, with the exception of proceedings that must be exhausted under applicable law before pursuing a claim in a court of law or in any forum other than arbitration. Except as it otherwise provides, this Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative (non-PAGA) action. . . .

(Id. at § 15.3(i))

         The Arbitration Provision also contains a “delegation clause, ” stating that the arbitrator will decide questions about the validity and scope of the arbitration clause itself, i.e., questions of “arbitrability”:

Except as provided in Section 15.3(v), below, regarding the Class Action Waiver, such disputes [that will be decided by arbitration] 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. However, as set forth below, the preceding sentences shall not apply to disputes relating to the interpretation or application of the Class Action Waiver or PAGA Waiver below, including their enforceability, revocability or validity. Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to all disputes between You and Uber . . . .

(Id.)

Lastly, the Arbitration Provision also includes an “opt-out” provision, stating:
Arbitration is not a mandatory condition of your contractual relationship with Uber. If You do not want to be subject to this Arbitration Provision, You may opt out of this Arbitration Provision by notifying Uber in writing of Your desire to opt out of this Arbitration Provision, which writing must be dated, signed and delivered by electronic mail to optout@uber.com, by U.S. Mail, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.), or by hand delivery” [to listed address] . . . within 30 days of the date this Agreement is executed . . . .

(Id.)

         In order to use the Uber App to receive transportation requests, Uber drivers had to click on a “YES, I AGREE” box twice to indicate assent to Uber's Services Agreement.[5] (Colman Decl., at ¶ 8.) Before going online, drivers were directed to a page titled, “TERMS AND CONDITIONS”, which said on the top “TO GO ONLINE, YOU MUST REVIEW ALL THE DOCUMENTS BELOW AND AGREE TO THE CONTRACTS BELOW.” (Colman Decl., Ex. A.) There was no time limit for drivers to review the contracts, which were available by hyperlink on the same page. (Colman Decl., Ex. A; Colman Decl., at ¶ 8.) On the bottom of the page, there was a clickable blue box with the large, capitalized words, “YES, I AGREE”. (Colman Decl., Ex. A). Directly above the blue box, there was a provision that read, “By clicking below, you represent that you have reviewed all the documents above and that you agree to all the contracts above.” (Id.) Clicking on the “YES, I AGREE” button would cause the background of the page to go dark, and a centrally located white box would pop up, stating in bold, capitalized text, “PLEASE CONFIRM THAT YOU HAVE REVIEWED ALL THE DOCUMENTS AND AGREE TO ALL THE NEW CONTRACTS.” (Colman Decl., Ex. B.) Drivers could click either “NO” or “YES, I AGREE”. (Id.) After drivers accepted the Services Agreement, a copy automatically would be transmitted to their Driver Portal, where they could review it at any time. (Colman Decl. at ¶ 8.)

         B. Plaintiffs' Work as Uber Drivers

         Plaintiffs are native Chinese speakers who speak little or no English. (Dkt. 25, Ex. A, Guan Declaration (“Guan Decl.”) at ¶ 2; Li Declaration (“Li Decl.”) at ¶ 2.). Plaintiffs started working as Uber drivers in the summer and fall of 2015. (Guan Decl., at ¶ 1; Li Decl., at ¶ 1.) When they registered to use Uber, they downloaded a Chinese version of the Uber App, which had an interface that was entirely in Chinese. (Guan Decl., at ¶ 3; Li Decl., at ¶ 3.) The registration process itself was in Chinese, but the April 2015 Services Agreement and Addendum were not translated into Chinese, and were only available in English. (Guan Decl., at ¶ 4; Li Decl., at ¶ 4.) Each Plaintiff testified that he “vaguely recall[ed] that [he was] prompted to click on a ‘Yes, I agree' button before [he] could finish the registration process, ” and that he “felt compelled to click on the ‘Yes, I agree' button because it was the only way for [him] to pass the registration process. (Guan Decl., at ¶ 4; Li Decl., at ¶ 4.)[6] Plaintiffs testified that they were “not aware that [they] agreed to” the April 2015 Services Agreement. (Guan Decl., at ¶ 5; Li Decl., at ¶ 5.)

         In December 2015, the Plaintiffs saw the “YES, I AGREE” button pop up again on their screens, and they clicked on it in order to start working and picking up passengers. (Guan Decl., at ¶ 6; Li Decl., at ¶ 6.) Once again, the 2015 December Services Agreement and Addendum were in English, and neither Plaintiff could, or did, read it. (Guan Decl., at ¶¶ 7, 9; Li Decl., at ¶¶ 7, 9.) Plaintiffs failed to timely opt out of the Arbitration Provision.[7] According to Plaintiffs, neither of them had the means to have any of the Services Agreements translated into Chinese, and neither of them has the resources to pay an arbitrator to pursue their individual claims, even if the costs are split with Uber. (Guan Decl., at ¶¶ 8, 14; Li Decl., at ¶ 8, 14.) At the time the complaint was filed, Plaintiffs were still working as Uber drivers. (Complaint at ¶¶ 9, 15.)

         II. PROCEDURAL HISTORY

         Plaintiffs filed the present Complaint on February 4, 2016, alleging that Defendant failed to fully reimburse them for toll expenses incurred in their work as Uber drivers. (Dkt. 1, at 2.) On June 30, 2016, Defendants moved to compel arbitration. (Dkt. 17.) The motion was fully briefed on August 4, 2016.[8]

         DISCUSSION

         I. LEGAL STANDARD

         When deciding motions to compel arbitration, courts apply a “standard similar to that applicable for a motion for summary judgment, ” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016) (quotations and citations omitted). “[W]here the undisputed facts in the record require the matter of arbitrability to be decided against one side or the other as a matter of law, [a court] may rule on the basis of that legal issue and avoid the need for further court proceedings.” Wachovia Bank, Nat'l Ass'n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 172 (2d Cir. 2011) (quotation omitted).

         The Federal Arbitration Act (“FAA”) provides that a written arbitration agreement in a contract involving commerce “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. This provision reflects “both a ‘liberal federal policy favoring arbitration' . . . and the ‘fundamental principle that arbitration is a matter of contract.'” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (quoting Mos ...


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