`
`
`
`TOBIAS S. KELLER (SBN 151445)
`tkeller@kbkllp.com
`DARA L. SILVEIRA (SBN 274923)
`dsilveira@kbkllp.com
`KELLER BENVENUTTI KIM LLP
`650 California Street, Suite 1900
`San Francisco, California 94108
`Telephone: (415) 364-6793
`Facsimile: (650) 636-9251
`
`NEEL CHATTERJEE (SBN 173985)
`NChatterjee@goodwinlaw.com
`ANDREW S. ONG (SBN 267889)
`AOng@goodwinlaw.com
`GOODWIN PROCTER LLP
`601 Marshall Street
`Redwood City, California 94063
`Tel.: +1 650 752 3100
`Fax: +1 650 853 1038
`
`HONG-AN VU (SBN 266268)
`HVu@goodwinlaw.com
`GOODWIN PROCTER LLP
`601 S. Figueroa Street, 41st Flr.
`Los Angeles, California 90017
`Tel.: +1 213 426 2500
`Fax: +1 213 623 1673
`
`Proposed Attorneys for Debtor and
`Debtor in Possession Anthony S. Levandowski
`
`
`UNITED STATES BANKRUPTCY COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`In re:
`
`ANTHONY SCOTT LEVANDOWSKI,
`
`Debtor.
`
`
`
`
`Bankruptcy Case
`No. 20-30242 (HLB)
`
`Chapter 11
`
`ANTHONY LEVANDOWSKI’S NOTICE
`OF MOTION AND MOTION TO COMPEL
`ARBITRATION; MEMORANDUM OF
`POINTS AND AUTHORITIES IN
`SUPPORT THEREOF
`
`Date:
`Time:
`Crtrm:
`Judge:
`
`April 30, 2020
`10:00 a.m.
`19
`Hon. Hannah L. Blumenstiel
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`NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION; MP&A
`Case: 20-30242 Doc# 18 Filed: 03/30/20 Entered: 03/30/20 16:58:39 Page 1 of 30
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`
`
`NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION
`
`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`
`PLEASE TAKE NOTICE that on April 30, 2020 at 10:00 a.m., or as soon as thereafter as
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`counsel may be heard, in Courtroom 19 of the Bankruptcy Court in the Northern District of
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`California, located at 450 Golden Gate Ave, 16th Floor, San Francisco, CA 94102 before the
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`Honorable Hannah L. Blumenstiel, Anthony Levandowski will and hereby does move this Court
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`for an order compelling Uber Technologies, Inc. (“Uber”) to arbitrate the claims Mr.
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`Levandowski has asserted against it. A proposed form of order is attached hereto as Exhibit A.
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`As part of a transaction in which Uber acquired a company Mr. Levandowski helped start,
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`Uber signed an Indemnification Agreement under which it agreed to indemnify Mr. Levandowski
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`against claims brought by his former employer, Google LLC. See Declaration of Neel Chatterjee,
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`Ex. A at Ex. 1. Uber has failed to honor its indemnity obligations. As such, Mr. Levandowski
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`has filed an arbitration demand with JAMS pursuant to the terms of Section 2.2(e) and 2.3 of the
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`Indemnification Agreement. Id. at §§ 2.2(e), 2.3. Mr. Levandowski now moves for an order
`
`compelling Uber to arbitrate Mr. Levandowski’s claims against it.
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`This Motion is based upon this Notice of Motion, the attached Memorandum of Points
`
`and Authorities in support thereof, the Declaration of Neel Chatterjee filed contemporaneously
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`herewith, all papers and pleadings from this case on file with the Court, all other matters of which
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`the Court may take judicial notice, any further evidence or argument offered to the Court at the
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`hearing on this Motion, and any other matters that the Court may consider.
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`//
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`
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`

`

`
`
`Dated: March 30, 2020
`
`
`
`
`
`Respectfully submitted,
`
`By:/s/ Neel Chatterjee
`Neel Chatterjee
`NChatterjee@goodwinlaw.com
`ANDREW S. ONG
`AOng@goodwinlaw.com
`GOODWIN PROCTER LLP
`601 Marshall Street
`Redwood City, California 94063
`Tel.: +1 650 752 3100
`Fax: +1 650 853 1038
`
`Hong-An Vu
`HVu@goodwinlaw.com
`GOODWIN PROCTER LLP
`601 S. Figueroa Street, 41st Flr.
`Los Angeles, California 90017
`Tel.: +1 213 426 2500
`Fax: +1 213 623 1673
`
`Tobias S. Keller
`tkeller@kbkllp.com
`Dara L. Silveira
`dsilveira@kbkllp.com
`KELLER BENVENUTTI KIM LLP
`650 California Street, Suite 1900
`San Francisco, California 94108
`Telephone: (415) 364-6793
`Facsimile: (650) 636-9251
`
`
`Proposed Attorneys for Debtor and
`Debtor in Possession Anthony S. Levandowski
`
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`ATTORNEYS AT LAW
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`NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION; MP&A
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`

`
`
`TABLE OF CONTENTS
`
`Page
`
`NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION...................................... 2
`
`INTRODUCTION ............................................................................................................... 1
`
`FACTS ................................................................................................................................. 2
`
`A.
`
`B.
`C.
`
`Mr. Levandowski Establishes His Reputation as a Pioneer in Self-Driving Car
`Technology ............................................................................................................... 2
`Mr. Levandowski Builds Google’s Self Driving Car Program ................................ 3
`Mr. Levandowski Joins Uber and obtains Indemnity against Claims Google May
`Raise ......................................................................................................................... 4
`Google Initiates Arbitration Against Mr. Levandowski .......................................... 9
`D.
`Uber Accepts the Indemnity Obligations ................................................................. 9
`E.
`Uber Refuses to Pay Expenses Relating to Google’s Claims ................................ 12
`F.
`ARGUMENT ..................................................................................................................... 14
`
`A.
`
`B.
`
`The Indemnification Agreement Contains an Enforceable Arbitration Provision
`Governing Mr. Levandowski’s Claims .................................................................. 14
`Uber Cannot Rescind the Agreement to Arbitrate. ................................................ 16
`Rescission Based on Fraudulent Inducement Is a Question for the
`1.
`Arbitrator .................................................................................................... 16
`Any Other Questions of Arbitrability Should be Decided by the Arbitrator.
` .................................................................................................................... 18
`Uber Cannot Rescind the Agreement as a Matter of Law ..................................... 19
`1.
`Uber Waiver Any Claim for Rescission..................................................... 19
`2.
`Uber Cannot Show a Material Misrepresentation or Omission to Support
`Fraud in the Inducement............................................................................. 22
`CONCLUSION .................................................................................................................. 25
`
`2.
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`C.
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`I.
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`II.
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`III.
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`IV.
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`

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`
`
`I.
`
`INTRODUCTION
`
`Mr. Levandowski requests that the Court compel Uber Technologies, Inc. (“Uber”) to
`
`arbitrate Mr. Levandowski’s claims to enforce Uber’s indemnity obligations. Uber has refused to
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`arbitrate its indemnity dispute with Mr. Levandowski despite an unambiguous clause which
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`requires it. See Declaration of Neel Chatterjee, Ex. 1 (“Arbitration Demand”) at Ex. A
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`(“Indemnification Agreement”) at § 2.2(e) (“An Indemnified Person [Mr. Levandowski] may
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`elect (in its sole discretion) to arbitrate whether such Indemnified Person is entitled to the
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`advancement of Expenses.”). Uber’s sole basis to refuse to arbitrate is that it purported to rescind
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`an indemnity obligation for a claim against Mr. Levandowski that it previously accepted and
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`controlled for over three years. Not only is the purported rescission meritless, but Uber also
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`agreed that any issues related to formation of the indemnity agreement would be subject to
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`arbitration. For these reasons, Uber cannot now refuse to honor the obligations it previously
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`accepted, and must be compelled to arbitrate this dispute.
`
`Mr. Levandowski is a star engineer who built one of the first self-driving motorcycles
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`(which is in the Smithsonian today), one of the first self-driving cars, and one of the first self-
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`driving freight trucks. He was one of the core engineers who built the technology for self-driving
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`cars that ultimately led to Waymo LLC, Alphabet’s leading autonomous driving company that
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`spun out of Google. Mr. Levandowski was well-compensated for his substantial contributions to
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`Waymo. After leaving Google, Mr. Levandowski understood that there was a significant risk that
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`his former employer would try to strip him of the compensation that he had earned at Google.
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`Mr. Levandowski left Google (Waymo’s predecessor) to start his own company,
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`Ottomotto LLC (“Otto”). Otto was eventually acquired by Uber. Uber conducted extensive due
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`diligence, including hiring an outside forensic investigation firm, Stroz Friedberg, LLC, to review
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`the electronic devices of Mr. Levandowski and other Otto employees. Uber received the results
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`of Stroz’s investigation, which included evidence that Mr. Levandowski had files belonging to
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`Google on his devices, as well as some indications that evidence may have been destroyed.
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`Despite this, to induce Mr. Levandowski to work with it, Uber agreed to a broad indemnification
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`agreement protecting Mr. Levandowski against claims brought by Google relating to his previous
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`employment. See Chatterjee Decl. at Ex. 1 at Ex. A §§ 2.1(a); 2.3. As Mr. Levandowski feared,
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`just months after Uber announced its acquisition of Ottomotto and Mr. Levandowski joining
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`Uber’s self-driving initiative, Google made two arbitration demands against him. As agreed,
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`Mr. Levandowski tendered his defense of those claims to Uber, and Uber accepted its indemnity
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`obligations. Uber then controlled Mr. Levandowski’s defense for years and paid all expenses
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`associated with the defense. After it was clear that Mr. Levandowski could be liable for a
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`substantial judgment, Uber reneged on its deal and refused to pay the expenses, including any
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`potential judgment, as required by the Indemnification Agreement.
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`When a final judgment was entered against Mr. Levandowski, he was forced to initiate
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`these Chapter 11 proceedings while seeking to enforce the indemnity obligations against Uber.
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`Mr. Levandowski made a formal demand that Uber pay. Uber refused. Based upon this refusal,
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`Mr. Levandowski has filed an arbitration demand under the Indemnification Agreement. Because
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`Uber has made clear that it will not honor the Indemnification Agreement, Mr. Levandowski files
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`this contemporaneous Motion to enforce his right to arbitrate his claims against Uber.
`
`II.
`
`FACTS
`
`A. MR. LEVANDOWSKI ESTABLISHES HIS REPUTATION AS A PIONEER IN SELF-
`DRIVING CAR TECHNOLOGY
`
`Mr. Levandowski has had a lifelong fascination with robots and autonomous devices.
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`Chatterjee Decl. at Ex. 1 (“Arbitration Demand”) at ¶ 21. Mr. Levandowski earned his
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`undergraduate and graduate degrees in Industrial Engineering and Operations Research at
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`University of California, Berkeley (“U.C. Berkeley”). Id. at ¶ 22. In 2004, he participated in the
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`Defense Advanced Research Projects Agency’s (“DARPA”) Grand Challenge, a prize
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`competition for autonomous vehicles. Id. at ¶ 23. He was 24 years old at the time. Id.
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`The DARPA Grand Challenge was an effort to race robotic, computer-controlled vehicles
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`between Los Angeles and Las Vegas. Id. at ¶ 24. Mr. Levandowski and a team of engineers
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`from U.C. Berkeley—working in Mr. Levandowski’s garage using crowd-sourced donations—
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`submitted a self-driving, self-balancing, two-wheeled motorcycle. Id. This motorcycle,
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`Ghostrider, competed against well-funded submissions from Stanford University, Carnegie
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`Mellon, as well as established companies. After performing well in several qualifying rounds,
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`Ghostrider was selected as a contender for the DARPA Grand Challenge. Id. Ghostrider now sits
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`in the Smithsonian Museum as one of America’s great innovations. Id. at ¶ 25.
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`Mr. Levandowski’s Ghostrider entry caught the attention of many, including Dr. Sebastian
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`Thrun, a Stanford computer science professor who was also a participant in the DARPA Grand
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`Challenge. Id. at ¶ 26. Dr. Thrun recruited Mr. Levandowski to work for his mapping company,
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`VuTool. Id. at ¶ 27. VuTool was subsequently acquired by Google. Id.
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`B. MR. LEVANDOWSKI BUILDS GOOGLE’S SELF DRIVING CAR PROGRAM
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`Mr. Levandowski joined Google in 2007 as part of a team hired to work on mapping with
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`Dr. Thrun. Id. at ¶ 28. Mr. Levandowski helped develop the technology for the Google service
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`now known as Street View. Id.
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`In approximately 2009, Dr. Thrun and Mr. Levandowski decided to launch a self-driving
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`car program at Google. Id. at ¶ 29. The program was named “Project Chauffeur.” Id. Mr.
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`Levandowski was an instrumental contributor to Project Chauffeur until he left Google in early
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`2016. Id. Mr. Levandowski was paid approximately $127 million by Google for his work on
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`Project Chauffeur. Id. at ¶ 30. The majority of that payment came in December 2015 and then in
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`mid-August 2016, after Mr. Levandowski left Google. Id.
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`In early 2015, Uber announced that it was launching its own self-driving car initiative by
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`acquiring a team of engineers from Carnegie Mellon University. Id. at ¶ 31. At the same time,
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`Mr. Levandowski became increasingly dissatisfied with the direction of Project Chauffeur and the
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`slow progress it was making. Id. at ¶ 32. Dr. Thrun introduced Mr. Levandowski to Travis
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`Kalanick at Uber. Id. at ¶ 33. After that introduction, Uber repeatedly tried to recruit Mr.
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`Levandowski, and also encouraged him to leave Google to form a commercial partnership. Id.
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`Mr. Levandowski’s colleagues, and more than one of his superiors, were aware that Mr.
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`Levandowski may be having discussions with Uber. Id. at ¶ 34.
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`After Uber’s announcement in 2015 of its own self-driving car initiative, there were many
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`discussions within Google about how to compete with Uber. Id. at ¶ 35. In those discussions,
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`executives within Google expressed distaste and animosity towards Uber. Id. Larry Page, one of
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`Google’s founders and its then-CEO, was one of the individuals expressing such views. Id.
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`Uber’s founder and then-CEO, Travis Kalanick, testified that after Uber announced its
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`entry into self-driving, Larry Page communicated directly to Mr. Kalanick his displeasure about
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`the increased competition:
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`So when we acquired the [Carnegie] team and we were eventually -- we acquired it
`because we couldn't get meetings [with Google] and we couldn't figure out if they
`were still up for partnering. When we finally got the meeting, Larry made it very
`clear that he was very upset with us and not happy that we were doing autonomy.
`And everything we would get in terms of a signal from other people who knew him
`or knew people around him was that generally Google was super not happy,
`unpumped, about us doing this. And so when you go and hire a group of people, a
`large group of people, acquire a company where a large group of people, you know,
`come from there, you know, that competitive thing, those competitive juices get
`flowing, and that means there is a higher likelihood of a lawsuit of some kind.
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`Id. at ¶ 36 (citing to Kalanick Waymo trial testimony at 717:4-17).
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`Toward the end of his time at Google, Mr. Levandowski had several discussions with Mr.
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`Page about his dissatisfaction with Project Chauffeur. Id. at ¶ 37. During one of these
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`discussions, Mr. Levandowski told Mr. Page that he wanted to create his own self-driving start-up
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`outside of Google. Id. Mr. Page responded that if Mr. Levandowski did anything competitive
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`with Google, he would face negative consequences. Id. ¶ 38. Based on his dealings with Google
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`and communications with Mr. Page, Mr. Levandowski understood that “competitive” with
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`Google meant joining or working with a large, active competitor of Google. Id.
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`C. MR. LEVANDOWSKI JOINS UBER AND OBTAINS INDEMNITY AGAINST CLAIMS
`GOOGLE MAY RAISE
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`Mr. Levandowski left Google on January 27, 2016, and shortly thereafter, helped start
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`Otto. Id. ¶ 39. Soon after Mr. Levandowski joined Otto, Uber pushed for discussions to acquire
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`Otto. Id. ¶ 40. As part of these discussions, Mr. Levandowski repeatedly told Uber that Google
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`would see Mr. Levandowski working with Uber as a competitive act and would be very unhappy.
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`Id. at ¶ 41. Mr. Levandowski also told Uber that he feared that Google would sue him and seek
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`recovery of the substantial amounts of money that had been paid to him or were owed to him. Id.
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`In total, he had over a dozen conversations with executives at Uber about his concerns, including
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`particular, Mr. Levandowski discussed the possibility that Google might sue him, Mr. Page’s
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`aggressiveness with competitors, and Mr. Page’s dislike of Mr. Kalanick. Id. In response, Mr.
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`Kalanick stated that he was not concerned about litigation, that he was prepared to fight Google to
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`protect Mr. Levandowski, and that “Uber eats injunctions for breakfast.” Id.
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`In exchange for Uber’s protection from claims by Google, among other consideration, Mr.
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`Levandowski agreed to be and was interviewed by Uber’s due diligence and risk management
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`firm, Stroz Friedberg. Id. at ¶ 43. He also provided over 35 of his devices and gave access to
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`over ten email and other types of accounts to Stroz for examination. Id. Mr. Levandowski
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`understood and communicated to Uber that by providing such access, anything provided to Stroz
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`either during the interview or on Mr. Levandowski’s devices and accounts would be covered by
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`the indemnity. Id. at ¶ 44. The investigation uncovered facts related to potential claims that
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`might be brought by Google, including that Mr. Levandowski “(a) possessed Google information;
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`(b) met with a number of Google employees about joining his start-up company; (c) met with
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`Uber executives, while employed at Google, about forming a new company; and (d) destroyed
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`highly confidential Google proprietary information he had stored on five disks on his personal
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`Drobo 5D, including source code, files, and software pertaining to self-driving cars.” Id. at ¶¶ 44,
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`59. This investigation was a multi-month effort that spanned from March 2016 through August
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`2016. Id. at ¶ 44.
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`To get Mr. Levandowski to join Uber, Uber agreed to indemnify Mr. Levandowski against
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`any claims Google may raise that were disclosed during the due diligence. See Arbitration
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`Demand at Ex. A (“Indemnification Agreement”).1 The goal of the Indemnification Agreement
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`was to indemnify Mr. Levandowski and others for “Pre-Signing Bad Acts,” which were defined
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`as any of the following acts that occurred prior to April 11, 2016:
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`“Bad Acts” shall mean (a) fraud committed by or on behalf of any member of the
`Company Group and/or committed by any Employee, (b) willful, intentional or
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`1 The Indemnification Agreement was originally between Apparate International C.V.
`(“Apparate” or “Purchaser”) and Anthony Levandowski with Uber guaranteeing Apparate’s
`performance and agreeing to be liable for any breach by Apparate. See Arbitration Demand, Ex.
`A at 3.14. On March 27, 2020, Uber informed Mr. Levandowski that Apparate “has been
`dissolved and any rights and obligations it would have under the Indemnification Agreement have
`been assumed by Uber Technologies, Inc.” See id. at Ex. O.
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`deliberate conduct by an Employee or any member of the Company Group that
`constitutes or directly leads or contributes to the infringement (direct or indirect) or
`misappropriation by an Employee or any member of the Company Group of any
`patents, copyrights, trademarks or trade secrets of such Employee’s Former
`Employer, including, without limitation, taking, removing and/or copying software,
`product plans, or invention disclosures, in electronic or tangible form that are owned
`by such Employee’s Former Employer, (c) willful and/or intentional breach by any
`member of the Company Group or any Employee of any fiduciary duty or duty of
`loyalty to such Former Employer and/or (d) willful and/or intentional breach by any
`member of the Company Group or any Employee of any lawful and enforceable
`non-solicitation, non-competition, confidentiality or other similar restrictive
`covenant or agreement between any Employee and such Employee’s Former
`Employer.
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`“Pre-Signing Bad Acts” means any Bad Act committed prior to the Agreement Date.
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`Arbitration Demand at ¶ 46; Ex. A at 1-2, 3 (definition of “Bad Acts” and “Pre-Signing Bad
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`Acts”).
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`Section 2.1 outlined the scope of the indemnity for these Pre-Signing Bad Acts: (a)
`Purchaser will indemnify and hold harmless each Diligenced Employee and the
`Company Group, to the maximum extent permitted by applicable Law (subject to
`the limitations and exclusions set forth herein), from and against any and all
`Expenses incurred by such Diligenced Employee or any member of the Company
`Group, as applicable, arising out of any claim brought or threatened in writing by
`any Former Employer of such Diligenced Employee against any member of the
`Company Group or such Diligenced Employee, as applicable, arising out of or
`alleged to arise out of: (i) the infringement (direct or indirect) or misappropriation
`by such Diligenced Employee or any member of the Company Group of any
`intellectual property, including any patents, copyrights, trademarks or trade secrets,
`of such Diligenced Employee’s Former Employer, (ii) breach by such Diligenced
`Employee of such Diligenced Employee’s fiduciary duty or duty of loyalty to such
`Diligenced Employee’s Former Employer, and/or (iii) breach by such Diligenced
`Employee of any non-solicitation, non-competition, confidentiality or other similar
`restrictive covenant or agreement between such Diligenced Employee and such
`Diligenced Employee’s Former Employer (each, subject to Section 2.1(b) below, an
`“Indemnified Claim”, and, collectively, the “Indemnified Claims”).
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`Arbitration Demand at ¶ 47; Ex. A at § 2.1 (emphasis added).
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`“Expenses” is defined in the Indemnification Agreement to include, among other costs,
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`reasonable attorneys’ fees, costs of defense, any judgments, awards or damages, and interest
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`incurred.
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`“Expenses” means (a) any expense, liability, or loss, including reasonable attorneys’
`fees, mediation fees, arbitration fees, expert witness fees, vendor fees, costs (such
`as witness fees, duplication charges, data storage fees, filing fees, travel and meals),
`(b) any judgments, fines, bonds, penalties, damages, awards, and amounts paid or to
`be paid in settlement, and (c) any interest, assessments, taxes or other charges
`imposed on any of the items in part (a) and (b) of this definition, in each case, that
`is out-of-pocket and documented; provided, that Expenses shall exclude special,
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`consequential, indirect, exemplary or punitive damages, unless such Expenses were
`specifically awarded in a Final Judgment.
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`Id. at ¶ 48; Ex. A at 3.
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`The only limitations on Uber’s indemnification obligations with respect to “Pre-Signing
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`Bad Acts” are found in Section 2.1(b)(ii)). That section reads:
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`(b) Notwithstanding anything herein to the contrary, an Indemnified Claim shall
`not, regardless of whether the Closing occurs, include, and none of Parent,
`Purchaser or any of their respective Affiliates shall have any obligation hereunder
`to indemnify the Company Group or any Diligenced Employee in respect of, any:
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`(ii) claims that have been determined by a Final Judgment to arise or result
`from any Pre-Signing Bad Acts committed by or on behalf of any member of
`the Company Group by a Diligenced Employee and/or committed by any
`Diligenced Employee that reasonably arise or result from any facts,
`circumstances, activities or events arising prior to the date hereof that either (A)
`were not truthfully disclosed by the Diligenced Employees to the Outside
`Expert in response to relevant inquiries in connection with the due diligence
`performed by the Outside Expert or (B) were not contained or reflected in the
`due diligence materials provided by the Diligenced Employees to the Outside
`Expert.
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`Id. at ¶ 49; Ex. A at § 2.1(b)(ii) (emphasis added).
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`The Indemnification Agreement was structured to ensure that Mr. Levandowski would not
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`be left unprotected against Google, which had inexhaustible resources to attack Mr. Levandowski.
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`Id. at ¶ 50. The agreement was also structured so that Uber would indemnify Mr. Levandowski
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`first and could only seek recovery from him for Expenses improperly paid (if any) after any
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`matters initiated by Google had concluded. Id. ¶ 51. Under Section 2.3 of the Indemnification
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`Agreement, the parties specified a procedure by which Mr. Levandowski would notify Uber about
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`Expenses and receive payment.
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`2.3. Expenses
`(a) Upon receipt of a written request for the advancement of Expenses incurred by
`an Indemnified Person arising out of any Indemnified Claim and reasonable
`documentation evidencing such Expenses, Purchaser shall pay, or cause to be paid,
`to such Indemnified Person the amount of such Expenses within [redacted] Business
`Days of such request.
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`Id. at Ex. A, § 2.3.
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`If Uber denied a request for advancement of Expenses or otherwise failed to pay an
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`Expense, Uber agreed that Mr. Levandowski could initiate arbitration under the JAMS Rules to
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`enforce Uber’s obligations.
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`2.3. Expenses
`(a) Upon receipt of a written request for the advancement of Expenses incurred by
`an Indemnified Person arising out of any Indemnified Claim and reasonable
`documentation evidencing such Expenses, Purchaser shall pay, or cause to be paid,
`to such Indemnified Person the amount of such Expenses within [redacted] Business
`Days of such request. If Purchaser denies any such request or otherwise fails to
`advance such Expenses to such Indemnified Person within such [redacted]
`Business Day period, such Indemnified Person shall have the right to enforce
`its right to receive such Expenses by commencing arbitration under Section
`2.2(e). In the event of any such arbitration described in this Section 2.3(a), Purchaser
`shall not be permitted to arbitrate in such Proceeding whether the Indemnified Claim
`giving rise to such Expenses is an Excluded Claim until such time as such
`Indemnified Claim has been settled or subject to a final, non-appealable judgment
`in accordance with this Agreement.
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`Id. at § 2.3(a) (emphasis added).
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`(e) . . . An Indemnified Person [Mr. Levandowski] may elect (in its sole discretion)
`to arbitrate whether such Indemnified Person is entitled to the advancement of
`Expenses under Section 2.3(a). . . . Any such arbitration shall be held in San
`Francisco, California, under the Comprehensive Arbitration Rules and Procedures
`of JAMS (“JAMS”) and [Uber], on the one hand, and the Indemnified Person, on
`the other, agree to appear at such arbitration Proceeding.
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`Id. at § 2.2(e).
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`In contrast with Mr. Levandowski’s right to pursue arbitration immediately after Uber’s
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`refusal to advance expenses, the Indemnification Agreement requires Uber to wait to seek
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`through arbitration the recovery of any improperly advanced expenses until after full resolution of
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`Google’s claims either by settlement or a final non-appealable judgment:
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`In the event that Purchaser believes all or a portion of a Former Employer Claim is
`an Excluded Claim hereunder, Purchaser shall have the right (in its sole discretion),
`within 60 days following the settlement or final non-appealable adjudication of
`such Former Employer Claim, to initiate arbitration under Section 2.2(e) . . . . For
`the avoidance of doubt, Purchaser shall advance all Expenses incurred by the
`Indemnified Person(s) pursuant to Section 2.3(a) through the later to occur of the
`final settlement or final adjudication of such Former Employer Claim, which
`Expenses may be subject to reimbursement pursuant to this Section 2.2(d).
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`Id. at § 2.2(e) (emphasis added). After such arbitration, if an arbitrator determines that some
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`Expenses were not covered under the Indemnification Agreement, only then would Uber be
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`entitled to recovery of the payments it advanced for non-covered claims. See id.
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`D.
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`GOOGLE INITIATES ARBITRATION AGAINST MR. LEVANDOWSKI
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`On August 18, 2016, shortly after Uber completed its due diligence and days after Mr.
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`Levandowski received his second payment from Google, Uber announced that it was acquiring
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`Otto. Id. at ¶ 66. In that press release, Uber touted Mr. Levandowski’s skills and experience,
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`calling him “one of the world’s leading autonomous engin