`
`
`
`Bryan Weir (#310964)
`
`bryan@consovoymccarthy.com
`Thomas R. McCarthy (pro hac vice forthcoming)
`
`tom@consovoymccarthy.com
`CONSOVOY MCCARTHY PLLC
`1600 Wilson Boulevard, Suite 700
`Arlington, VA 22209
`(703) 243-9423
`
`Patrick Strawbridge (pro hac vice forthcoming)
`
`patrick@consovoymccarthy.com
`CONSOVOY MCCARTHY PLLC
`Ten Post Office Square
`8th Floor South PMB #706
`Boston, Massachusetts 02109
`(617) 227-0548
`
`Bradley A. Benbrook (#177786)
`
`brad@benbrooklawgroup.com
`BENBROOK LAW GROUP PC
`400 Capitol Mall, Suite 2530
`Sacramento, CA 95814
`(916) 447-4900
`
`Counsel for Petitioners
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`
`)
`
`VALERIA HERMOSILLO CHAVEZ,
`)
`Case Number: 3:21-cv-09577
`
`ERIK ESPARZA, JAMAR SMITH, and
`)
`
`ANTHONY SIMONEAU, and 7,267 OTHER )
`
`PETITION FOR AN ORDER
`INDIVIDUALS.
`)
`COMPELLING ARBITRATION
`
`)
`
`
`
`
`Petitioners,
`)
`
`)
`
`v.
`
`)
`
`
`)
`
`UBER TECHNOLOGIES, INC.; and
`)
`UBER USA, LLC,
`)
`
`)
`
`Respondents.
`)
`
`)
`)
`)
`)
`)
`)
`)
`PETITION FOR AN ORDER COMPELLING ARBITRATION
`CASE NO.: 3:21-cv-09577
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`Petitioners file this Petition for an Order Compelling Arbitration (“Petition”) against
`Respondents Uber USA, LLC, and Uber Technologies, Inc. (collectively, “Uber”), as follows:
`NATURE OF THE PETITION
`1.
`Petitioners are 7,271 customers of the Uber service Uber Eats.
`2.
`During the second half of 2020, Uber adopted and maintained a race-based,
`differential pricing scheme on Uber Eats whereby Uber did not charge its customers a delivery fee
`when they ordered from businesses identified as Black-owned, while at the same time penalizing
`its customers who ordered from non-Black-owned businesses by imposing delivery fees on them.
`3.
`This overtly race-based policy of disparate treatment conferred causes of action on
`many of Uber’s customers under the Civil Rights Act of 1866, 42 U.S.C. §1981, and California’s
`Unruh Civil Rights Act, Cal. Civ. Code §§51-52. See, e.g., Angelucci v. Century Supper Club, 41
`Cal. 4th 160, 175 (2007) (barring “price differential[s]” based on protected status).
`4.
`Uber’s arbitration agreement bars its customers from court and also bars them from
`proceeding on a class or collective basis.
`5.
`Petitioners and more than 20,000 other individual consumers (“Claimants”) thus
`brought their discrimination claims against Uber in the only way Uber permits them; each filed an
`individual demand with the American Arbitration Association (“AAA”) in his or her own name
`and advancing only his or her own claims under Section 1981 and Unruh. Claimants filed those
`demands starting in October 2020.
`6.
`AAA determined that all Claimants had satisfied their initial filing obligations and
`assessed Uber for filing fees that it owed under the Agreement.
`7.
`After paying the filing fees, Uber objected to proceeding with the arbitrations on
`an individual basis—even though its arbitration agreement mandates individual arbitration.
`8.
`Instead, Uber sought to impose collective-action procedures on the individual
`arbitrations—one of the very things Uber’s arbitration agreement bars its customers from doing.
`9.
`Relatedly, Uber urged AAA to depart from its published fee schedule, claiming that
`the collective procedures it sought warranted a reduction in the case-management fees and
`arbitrator fees that Uber had agreed to in its arbitration agreement.
`PETITION FOR AN ORDER COMPELLING ARBITRATION
`CASE NO.: 3:21-cv-09577
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`Case 3:21-cv-09577-RS Document 4 Filed 12/10/21 Page 3 of 15
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`10.
`On April 2, 2021, AAA advised Claimants and Uber that it would divide the
`claimants into five batches—a first batch of 477 claimants followed by three 7,771-claimant
`batches and one 7,770-claimant batch. AAA further advised the parties that it would invoice Uber
`for the case management fees at AAA’s long-posted rates—promptly for the first batch of 477 and
`then for the second batch after completing appointment of most of the arbitrators for the first batch.
`11.
`At AAA’s long-posted rates, that would amount to $667,800 in case management
`fees for the first batch (477 cases x $1,400/case) and $10,879,400 in case management fees for the
`second batch (7,771 cases x $1,400/case).
`12.
`On May 13, 2021, Uber paid the case-management fees for the first batch, and those
`477 cases proceeded into individual arbitration.
`13.
`On September 14, 2021, when arbitrators had been confirmed for nearly all of the
`first 477 cases, AAA issued Uber an invoice and requested payment of the Case Management fees
`for the second batch of 7,771 cases in the amount of $10,879,000.
`14.
`AAA’s invoice specifically noted that “[a]s these arbitrations are subject to
`California Code of Civil Procedure 1281.97 and 1281.98, payment must be received within 60
`days of the date of this letter. The AAA will not grant any extensions to this payment deadline.”
`15.
`On September 20, 2021, Uber fled arbitration for New York state court, filing suit
`against AAA seeking a preliminary injunction to renege on its promise to pay AAA’s long-posted
`fees.
`
`16.
`Several Claimants sought to intervene in the New York action to protect their rights.
`Uber objected, and intervention was denied. Plaintiffs are thus not a party to the New York
`proceedings.
`17.
`In the New York action, Uber sought a preliminary injunction that would, among
`other things, prohibit AAA from requiring the payment of its invoice to proceed with the
`arbitrations.
`18.
`In its filings, AAA repeatedly noted that it had no authority to alter the invoice and
`that the arbitration of the next 7,771 cases could not proceed unless the September 14 invoice was
`paid.
`
`PETITION FOR AN ORDER COMPELLING ARBITRATION
`CASE NO.: 3:21-cv-09577
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`Case 3:21-cv-09577-RS Document 4 Filed 12/10/21 Page 4 of 15
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`19.
`AAA also noted that California law required the invoice to be paid within 30 days
`of its due date, which would be October 14, 2021.
`20.
`The New York trial court rejected Uber’s request for a preliminary injunction,
`determining that Uber was unlikely to succeed on the merits of its challenges and could not
`demonstrate irreparable harm from the requirement that it pay AAA’s invoice in full.
`21.
`The invoice’s due date of October 14, 2021 passed without payment.
`22.
`Uber appealed that order to the New York Appellate Division and sought interim
`relief that would allow it to avoid paying the pending invoice.
`23.
`On October 20, 2021, though the invoice due date had passed, the New York
`Appellate Division entered an interim order purporting to “extend[] the time for payment of the
`October 14th invoice until a determination by the full bench.” The Appellate Division further
`ordered that Uber “pay[] to AAA $700,000 to cover the cost of arbitrator appointment.”
`24.
`Subsequent to that order, Uber tendered $700,000 to AAA, which accepted the
`payment on October 22. In confirming receipt, AAA informed the parties that “Uber’s payment of
`$700,000 covers the Case Management Fees for 500 cases ($1,400 per case). Therefore, at this
`time the AAA will proceed with the further administration of 500 cases.”
`25.
`On December 2, 2021, the New York Appellate Division entered another order
`purporting to extend the October 14, 2021 invoice deadline “on the condition that [Uber] perfect
`the appeal for the March 2022 Term of this Court and upon the condition imposed by the Interim
`Order of a Justice of this Court dated October 20, 2021.”
`26.
`As of October 14, AAA had not received payment for the other 7,271 cases in the
`second batch and thus has not proceeded with those arbitrations.
`27.
`Uber’s ongoing attempts to avoid payment of the invoice thus have deprived
`Claimants of the ability to proceed with their arbitrations under the very terms that Uber itself
`selected and imposed on them.
`28.
`Federal courts (including this one) have rejected similar attempts to evade arbitral
`fees and seek to resolve arbitral fee disputes in court instead of in arbitration. See, e.g., Adams v.
`Postmates, Inc., 414 F. Supp. 3d 1246 (N.D. Cal. 2019), aff’d, 823 F. App’x 535 (9th Cir. 2020).
`PETITION FOR AN ORDER COMPELLING ARBITRATION
`CASE NO.: 3:21-cv-09577
`
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`Case 3:21-cv-09577-RS Document 4 Filed 12/10/21 Page 5 of 15
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`29.
`Indeed, courts have enjoined parties to an arbitration agreement from pursuing
`actions in other jurisdictions, like Uber has here.
`30.
`AAA’s invoiced fees are subject to both Cal. Civ. Pro. §1281.97 and §1281.98. Cal.
`Civ. Pro. §1281.98(a) provides that a party who drafts a consumer arbitration agreement and then
`fails to pay “fees or costs required to continue the arbitration proceeding … is in material breach
`of the arbitration agreement [and] is in default of the arbitration.”
`31.
`Cal. Civ. Pro. §1281.98(b)(3) further provides that when “the drafting party
`materially breaches the arbitration agreement and is in default under subdivision (a),” the
`consumer may “[p]etition the court for an order compelling the drafting party to pay all arbitration
`fees that the drafting party is obligated to pay under the arbitration agreement or the rules of the
`arbitration company.”
`32.
`Petitioners therefore file this Petition to compel Uber to arbitrate the 7,271 cases
`filed by Petitioners under the terms of Uber’s arbitration agreement and AAA Consumer Rules,
`and to pay the fees required for that arbitration to proceed.
`33.
`Petitioners also request injunctive relief requiring Uber to withdraw the pending
`action in New York state court and cease any other efforts to avoid arbitration.
`PARTIES
`34.
`Petitioners are 7,271 Uber Eats customers who have filed individual consumer
`demands for arbitration against Uber with the AAA. Attached is a list of all Petitioners.
`35.
`Uber Technologies, Inc., is a Delaware corporation headquartered in San Francisco,
`California.
`36.
`Uber USA, LLC, is a Delaware limited liability company whose principal place of
`business is in San Francisco, California.
`JURISDICTION AND VENUE
`37.
`This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C.
`§§1331 and 1367 because the underlying controversy involves claims arising under federal law
`and state-law claims that arise from the same nucleus of operative facts as the federal claims.
`
`PETITION FOR AN ORDER COMPELLING ARBITRATION
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`38.
`This Court has personal jurisdiction over Respondents because Respondents have
`their headquarters and principal place of business in California.
`39.
`Venue is proper in this district pursuant to 9 U.S.C. §4 and 28 U.S.C. §1391(b)
`because Respondents have their headquarters and principal place of business in San Francisco
`County, Respondents do business in this district, and a substantial part of the events or omissions
`complained of occurred in this district.
`INTRADISTRICT ASSIGNMENT
`40.
`This action is properly assigned to the San Francisco Division of this District,
`pursuant to Civil Local Rule 3-2(c) and (d), because a substantial part of the events or omissions
`that give rise to the claim occurred in San Francisco County, which is served by the San Francisco
`Division.
`
`FACTS
`Uber’s Sweeping Arbitration Agreement
`41.
`Uber is an app- and web-based company that is worth approximately $84 billion.
`See UBER, Nasdaq Market Cap. (Aug. 16, 2021), bit.ly/2VTWgHw. It earns approximately $11
`billion in annual revenue from about 100 million customers who regularly use its platforms. See
`Uber, Uber Announces Results for Fourth Quarter and Full Year 2020 (Feb. 10, 2021),
`ubr.to/2UlBzmP; Uber, Uber Announces Results for First Quarter 2021 (May 5, 2021),
`ubr.to/37RUtEU. One of those platforms is a service called Uber Eats, which allows customers to
`place food-delivery orders from restaurants.
`42.
`Uber, like other large corporations, requires all its United States customers who use
`its services, including its meal-delivery service Uber Eats, to agree to Uber’s U.S. Terms of Use
`(“the Terms”)—a standardized, adhesive contract drafted solely by Uber. A true and correct copy
`of the Arbitration Agreement is attached as Ex. A.
`43.
`At all relevant times, the Terms have contained a sweeping arbitration agreement
`requiring Uber customers “to resolve any claim that you may have against Uber on an individual
`basis in arbitration.” Id. at 2.
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`44. More particularly, Uber forces its customers into arbitration for “any dispute, claim
`or controversy arising out of or relating to (a) these Terms or the existence, breach, termination,
`enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any
`time, whether before or after the date you agreed to the Terms.” Id.
`45.
`Uber specifically requires customers to “waiv[e] the right to a trial by jury or to
`participate as a plaintiff or class member in any purported class action or representative
`proceeding.” Id.
`46.
`Uber’s arbitration agreement provides that “[t]he arbitration will be administered
`by the American Arbitration Association (‘AAA’) in accordance with the AAA’s Consumer
`Arbitration Rules.” Id. at 3. It expressly incorporates AAA’s published fee schedule and provides
`that “[y]our responsibility to pay any AAA filing, administrative and arbitrator fees will be solely
`as set forth in the AAA Rules.” Id. at 4 (emphasis added). And Uber expressly promises to absorb
`all these fees for any customer whose “claim for damages does not exceed $75,000.” Id. AAA’s
`Consumer Rules further explain that the business will pay a “Case Management Fee” or “$1,400”
`per case that “must be paid prior to the arbitrator appointment process” and at least “$1,500 per
`case” for “Arbitrator Compensation.” A true and correct copy of AAA’s Consumer Rules are
`attached as Ex. B.
`47.
`Uber made this promise to assure its customers—and the courts and AAA—that its
`arbitration agreement is fair to customers and not unconscionable.
`48.
`Uber routinely enforces its arbitration agreement against customers and, in doing
`so, uniformly relies on its promise to pay all AAA fees to justify forcing customers into individual
`arbitration. Uber repeatedly has argued that its arbitration agreement “safeguard[s] … access to
`the arbitral forum” and defeats “an unconscionability challenge” precisely because Uber agreed to
`pay “all” AAA “filing, administrative, and arbitrator fees.” Uber Mot. to Compel, Meyer v. Uber
`Techs., Inc., 2016 WL 3662485 (S.D.N.Y.); see also, e.g., Uber Mot. to Compel, Sabatino v. Uber
`Techs., Inc., 2015 WL 2160125 (N.D. Cal.).
`
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`Petitioners File Discrimination Claims Against Uber in Individual Arbitration
`49.
`Between June 4 and December 31 of 2020, Uber openly adopted and implemented
`a race-based, differential-pricing scheme. Under that scheme, Uber viewed the businesses on its
`platform as two groups separated by a racial line. To Uber, businesses identified as Black-owned
`were on one side; and non-Black-owned businesses were on the other. Having distinguished these
`businesses by race, Uber charged no delivery fees to customers who ordered from Black-owned
`businesses while penalizing customers who ordered from non-Black-owned businesses by
`charging them delivery fees.1
`50.
`Petitioners are customers who used the Uber Eats app during the relevant period
`and paid the discriminatory delivery fee. They assert that Uber’s express race-based discrimination
`violated California’s Unruh Civil Rights Act, Cal. Civ. Code §§51-52, and 42 U.S.C. §1981. See,
`e.g., Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1050 (9th Cir. 2000) (Unruh bars
`“discrimination in the form of pricing differentials”).
`51.
`Because Uber’s arbitration agreement allowed them to vindicate their claims only
`through individual arbitration, Petitioners filed arbitration demands with AAA between October
`and December of last year. On December 16, 2020, AAA advised the parties that Claimants met
`AAA’s filing requirements and directed Uber to pay a total of $4,346,625 in filing fees by January
`4, 2021 and February 4, 2021 (depending upon the filing date of the demand).
`52.
`Uber paid the entire amount of filing fees early on December 24, 2020.
`Uber’s Resistance to Its Own Arbitration Agreement
`53.
`After paying the filing fees, Uber balked at litigating these cases according to the
`rules of its own arbitration agreement.
`
`
`1 In May of 2021, Uber settled with the State of Arizona for claims under the Arizona Civil
`Rights Act arising out of that very discriminatory pricing regime. See Ariz. Att’y Gen., Attorney
`General Brnovich Settles Race Discrimination Allegations with Uber, Postmates, DoorDash (June
`2, 2021), bit.ly/3yVeHcQ.
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`54.
`Though Uber bars its customers from bringing collective actions, Uber itself
`promptly sought to impose collective-action procedures on these individual arbitrations and
`demanded a reduction in AAA’s fees along with those procedural changes.
`55.
`After AAA rejected Uber’s demands to depart from the terms of Uber’s arbitration
`agreement (and from AAA’s Consumer Rules, which Uber had adopted in its agreement), Uber
`stooped to threatening AAA’s staff and questioning its impartiality for applying AAA’s published
`fee schedule according to its express terms. Uber further demanded that AAA’s arbitrators not be
`fully compensated for their work in these cases.
`56.
`AAA resisted Uber’s threats, noted that Uber itself chose individual arbitration
`before AAA and AAA’s Consumer Rules, and rejected Uber’s attempts to alter the terms of its
`arbitration agreement.
`57.
`On April 2, 2021, AAA advised Uber that it would divide the claimants into five
`batches—a first batch of 477 claimants followed by three 7,771-claimant batches and one 7,770-
`claimant batches. At AAA’s posted rates, that would amount to $667,800 in case management fees
`for the first batch (477 cases x $1,400/case) and $10,879,400 in case management fees for the
`second batch (7,771 cases x $1,400/case).
`58.
`AAA also advised Uber on April 2 that “[o]nce arbitrators are appointed to the first
`batch of 477 cases, we will … bill Case Management Fees for the next batch of 7,771 matters.”
`59.
`Uber thus knew as of April 2, 2021 precisely how case management fees would be
`billed in the AAA proceedings and the amounts of the coming invoices.
`60.
`Uber paid $667,800 in case management fees for the first 477 arbitrations on
`May 13, 2021, and AAA began assigning arbitrators for those cases.
`61.
`These 477 cases have been moving forward according to the terms of the
`Agreement. Indeed, while Uber initially demanded collective action procedures on the false
`premise that each case was part of a de facto class action, Uber has now changed its position and
`is litigating Claimants’ cases as individual cases and, among other things, has taken the position
`that every single claimant must be subjected to individualized discovery.
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`62.
`On September 14, 2021, AAA notified the parties that it had invoiced Uber for case
`management fees for the next batch of Claimants, in the amount known since April 2—
`$10,879,400. A true and correct copy of the invoice is attached as Ex. C.
`63.
`In accompanying correspondence, AAA made clear (once again) that the invoice
`was final and it would not reconsider its decision absent agreement of the parties. And AAA noted
`that “[a]s these arbitrations are subject to California Code of Civil Procedure 1281.97 and 1281.98,
`payment must be received within 60 days of the date of this letter. The AAA will not grant any
`extensions to this payment deadline.” A true and correct copy of this correspondence is attached
`as Ex. D.
`
`Uber’s Desperate Bid to Escape Arbitration
`64.
`Six days later, on September 20, 2021, Uber filed a lawsuit in New York state court
`seeking to renege on its promise to pay AAA’s long-posted fees. See Uber Techs., Inc. v. Am.
`Arbitration Ass’n, Inc., No. 655549/2021 (N.Y. Sup. Ct.).
`65.
`Specifically, Uber asked the New York court for a preliminary injunction to
`“extend[] the invoiced deadline” and “enjoin[] the AAA from issuing any additional invoices.”
`Ex. E at 7-8. Though AAA simply applied its posted fee schedule in invoicing Uber, Uber claimed
`that it has a right to extensive internal financial information from AAA in order to determine
`whether AAA’s case-management fees are reasonable. Ex. E at 16. Indeed, Uber seeks an
`“accounting” of “AAA’s costs and expenses” incurred in relation to the fees invoiced. Ex. F at 3.
`66.
`Uber’s suit is entirely baseless. It violates the principle of arbitral immunity, ignores
`the very terms of the contract Uber itself drafted and imposed on Claimants, and violates the
`AAA’s own rules—which Uber chose and incorporated into the parties’ agreement—providing
`that “[n]either the AAA nor any arbitrator in a proceeding under these Rules is a necessary or
`proper party in judicial proceedings relating to the arbitration” and that “neither the AAA, AAA
`employees, nor any arbitrator shall be liable to any party in any action for damages or injunctive
`relief for any act or omission in connection with any arbitration under these rules.” AAA Consumer
`Rule R-49(b), (d). Ex. G.
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`67.
`Some of the Claimants in the underlying arbitrations sought to intervene in the New
`York proceedings to the protect those rights. Uber opposed intervention, and the trial court
`subsequently denied the motion. A true and correct copy of the order denying intervention is
`attached as Ex. H.
`68.
`Following a multi-day evidentiary hearing, the New York trial court denied Uber’s
`request for a preliminary injunction on October 14, 2021. The trial court concluded that Uber (1)
`failed to establish irreparable harm, since “Uber conceded that it has the ability to pay the invoice”
`and payment “will not cause Uber to be insolvent”; (2) Uber had not shown a likelihood of success
`on the merits, since Uber itself required Claimants “to arbitrate disputes,” the AAA’s rates for its
`services are “pursuant to a published fee schedule” which Uber “presumably” knew about, and
`Uber’s suit was also likely to be barred by arbitral immunity, which protects AAA from suits
`challenging its fees and administration of the arbitrations; (3) the balance of the equities did not
`favor Uber because it “used its unequal bargaining power” to impose arbitration “as individualized
`cases, in accordance with the AAA’s published rules”; and (4) to the extent Uber was concerned
`about the effect of California statutes imposing duties on companies that deployed arbitration
`agreements, the “court [was] not in any position to second-guess the wisdom of the California
`legislature in this area.” A true and correct copy of the New York Supreme Court’s order is
`attached as Ex. I.
`69.
`Uber appealed the decision to the New York Appellate Division, First Department,
`on October 15, 2021. As part of its appeal, Uber sought interim relief.
`70.
`On October 20, 2021, a single justice of the Appellate Division entered an interim
`order providing that Uber’s request was “granted to the extent that the time for movant to pay the
`invoice with a due date of October 14th, 2021 is extended until a determination by the full bench,
`conditioned on movant paying to AAA $700,000 to cover the cost of arbitrator appointment.” A
`true and correct copy of this order is attached as Ex. J.
`71.
`Uber subsequently tendered $700,000 to AAA, which accepted the payment on
`October 22. In confirming receipt, AAA informed the parties that “Uber’s payment of $700,000
`covers the Case Management Fees for 500 cases ($1,400 per case). Therefore, at this time the AAA
`PETITION FOR AN ORDER COMPELLING ARBITRATION
`CASE NO.: 3:21-cv-09577
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`Case 3:21-cv-09577-RS Document 4 Filed 12/10/21 Page 12 of 15
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`will proceed with the further administration of 500 cases.” A true and correct copy of that letter is
`attached as Ex. K.
`72.
`AAA has almost completed appointing arbitrators to those 500 cases. Though AAA
`stands ready to continue arbitrator appointment for the remaining 7,271 cases, it will not do so
`until Uber pays AAA’s published fees.
`73.
`On December 2, 2021, the New York Appellate Division entered an order which
`did not address the merits of Uber’s appeal but further granted interim relief to Uber “on the
`condition that [Uber] perfect the appeal for the March 2022 Term of this Court and upon the
`condition imposed by the Interim Order of a Justice of this Court dated October 20, 2021.”
`74.
`Despite losing on every issue before the trial court, Uber’s appeal of its preliminary
`injunction will thus remain pending in the New York appellate courts well into 2022, further
`frustrating Petitioners’ rights to arbitrate their cases that have already been pending for over a year.
`75.
`Uber’s ongoing attempts to avoid payment of the invoice thus have deprived
`Claimants of the ability to proceed with their arbitrations under the very terms that Uber itself
`selected and imposed on them.
`76. Meanwhile, Uber has continued to try and delay resolution of the New York case,
`including adjudication of AAA’s pending motion to dismiss in the New York trial court.
`77.
`Due to Uber’s ongoing and concerted efforts to avoid payment of the very fees that
`it incorporated into its adhesive arbitration agreement, thousands of Claimants are being deprived
`of their right to arbitration. And those Claimants have been denied the right to participate in Uber’s
`ongoing efforts to obstruct these arbitrations—just as Uber intended all along when it filed suit in
`New York.
`
`Petitioners Seek a Return to Arbitration
`78.
`This Court should put an end to Uber’s shenanigans. “The irony, in this case, is that
`the [customers] wish to enforce the very [restrictive arbitration] provisions forced on them by
`seeking, even if by the thousands, individual arbitrations, the remnant of procedural rights left to
`them. [But Uber], faced with having to actually honor its side of the bargain, now blanches at the
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`CASE NO.: 3:21-cv-09577
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`cost of the filing fees it agreed to pay in the arbitration clause. … This hypocrisy [should] not be
`blessed.” Abernathy v. DoorDash, Inc., 438 F. Supp. 3d 1062, 1067-68 (N.D. Cal. 2020).
`79.
`Indeed, this Court has already encountered several cases like this one where large
`corporations like Uber have imposed restrictive arbitration agreements and then hypocritically
`(and unlawfully) sought to close off arbitration by refusing to pay case management fees. See id.;
`Adams, 2019 WL 6694737, at *4 n.2. Each time the Court has compelled arbitration. See id. Other
`California courts have done the same. See Postmates Inc. v. 10,356 Individuals, 2020 WL 1908302
`(C.D. Cal.); see also Intuit Inc. v. 9,933 Individuals, 2021 WL 3204816 (Cal. Ct. App.).
`80.
`This Court should therefore use its authority under the FAA Section 4 to compel
`Uber to arbitrate according to the terms of the Agreement. See, e.g., Gulf Guar. Life Ins. Co. v.
`Conn. Gen. Life Ins. Co., 304 F.3d 476, 487 (5th Cir. 2002); Folse v. Richard Wolf Med.
`Instruments Corp., 56 F.3d 603, 604-06 (5th Cir. 1995); XO Commc’ns, Inc. v. Terra Telecomms.
`Corp., 333 F. Supp. 2d 494, 496 (E.D. Va. 2002). This Court has compelled parties to return to
`arbitration before, Brunner v. Lyft, Inc., 2019 WL 6001945, at *1 (N.D. Cal.) (granting a motion
`to dismiss and compel a party to return to arbitration with Lyft); Roderick v. Mazzetti & Assocs.,
`Inc., 2004 WL 2554453, at *2, *12 (N.D. Cal.) (compelling parties to return to arbitration after
`one party filed a lawsuit during an ongoing arbitration), and for good reason. This Court should
`not tolerate a party to arbitration “[going] to court when disappointed by interim arbitration rulings,
`particularly in arbitration proceedings the party agreed to and before arbitrators it selected.”
`Sullivan v. Feldman, 2021 WL 1517903, at *2 (S.D. Tex.). Such behavior is “antithetical to the
`purpose of arbitration.” Id.
`81.
`The Court should also issue injunctive relief in aid of its jurisdiction and to protect
`and effectuate its order compelling Uber to return to arbitration. See, e.g., A.L. Williams & Assocs.,
`Inc. v. McMahon, 697 F. Supp. 488, 494-95 (N.D. Ga. 1988). Under Supreme Court precedent,
`there is “a strong presumption” that district courts may issue these injunctions, Seneca Ins. Co.,
`Inc. v. Strange Land, Inc., 862 F.3d 835, 842 (9th Cir. 2017) (citing Moses H. Cone Mem’l Hosp.
`v. Mercury Constr. Corp., 460 U.S. 1 (1983)), and accordingly, federal district courts have easily
`found jurisdiction to enjoin a party’s pursuit of parallel state court actions that interfere with an
`PETITION FOR AN ORDER COMPELLING ARBITRATION
`CASE NO.: 3:21-cv-09577
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`Case 3:21-cv-09577-RS Document 4 Filed 12/10/21 Page 14 of 15
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`order compelling arbitration, see, e.g., Watermark Harvard Square, LLC v. Calvin, 2018 WL
`1166707, at *1, *9 (D. Colo.), report and recommendation adopted, 2018 WL 1952587 (D. Colo.);
`A.L. Williams & Assocs., 697 F. Supp. at 495.
`82.
`There is no doubt that Uber is refusing to arbitrate here. Claimants filed their
`demands over a year ago. Uber started delaying their adjudication for months while it badgered
`AAA to alter its rules. See supra ¶¶ 53-56. Then, after AAA issued an invoice in September and
`informed Uber that it must be paid by November 14, Uber refused to pay the posted fees required
`for AAA to assign arbitrators. As a result, 7,271 Claimants are currently being denied their right
`to arbitrate. The FAA was designed for just this type of scenario.
`83.
`In addition, Cal. Civ. Pro. §1281.98(a) provides that a party who drafts a consumer
`arbitration agreement and then fails to pay “fees or costs required to continue the arbitration
`proceeding … is in material breach of the arbitration agreement [and] is in default of the
`arbitration.”
`84.
`Cal. Civ. Pro. §1281.98(b)(3) further provides that when “the drafting party
`materially breaches the arbitration agreement and is in default under subdivision (a),” the
`consumer may “[p]etition the court for an order compelling the dra