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`Case 3:20-cv-02365-WQH-BGS Document 26 Filed 09/15/21 PageID.296 Page 1 of 19
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`
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` Case No.: 20-cv-2365-WQH-BGS
`
`ORDER
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`DRICKEY JACKSON, individually and
`on behalf of all others similarly situated,
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`Plaintiff,
`
`Defendant.
`
`v.
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`AMAZON.COM, INC.,
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`HAYES, Judge:
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`
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`The matter before the Court is the Motion to Compel Arbitration, Dismiss, or, in the
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`Alternative, to Stay filed by Defendant Amazon.com, Inc. (ECF No. 15).
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`I. BACKGROUND
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`On February 19, 2021, Plaintiff Drickey Jackson filed a First Amended Class Action
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`Complaint (“FAC”) against Defendant Amazon.com, Inc. (“Amazon”). (ECF No. 11). In
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`the FAC, Plaintiff alleges that he is a member of the Amazon Flex program—“a program
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`by which Amazon pays regular people to deliver packages.” (Id. ¶ 11). Plaintiff alleges that
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`he and many of the other approximately 800 Flex drivers joined “closed” or private
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`Facebook groups to discuss “a myriad of issues surrounding their employment,” including
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`strikes, protests, pay, benefits, deliveries, working conditions, and unionizing efforts. (Id.
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`¶¶ 2, 14). Plaintiff alleges that he has been a member of closed Facebook groups for Flex
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`drivers since 2016. Plaintiff alleges that he has communicated with other Flex drivers in
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`the closed Facebook groups and “believed he was only communicating with other Flex
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`Drivers.” (Id. ¶ 29). Plaintiff alleges that Defendant Amazon “has been secretly monitoring
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`and wiretapping these closed Facebook groups.” (Id. ¶ 17). Plaintiff alleges that Amazon
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`has created an “Advocacy Operations Social Listening Team” to “monitor and/or
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`intercept[]” posts to closed Facebook groups “in real time . . . using automated monitoring
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`tools.” (Id. ¶ 19). Plaintiff alleges that his posts were tracked and intercepted by Amazon
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`without Plaintiff’s consent.
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`Plaintiff seeks to represent a class of “all Flex Drivers in the United States who were
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`members [of] the closed Facebook groups, and whose electronic communications were
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`intercepted by Defendant” (the “Class”). (Id. ¶ 30). Plaintiff further seeks to represent a
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`subclass of “all Class members in the State of California who were members of the closed
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`Facebook groups, and whose electronic communications were intercepted by Defendant”
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`(the “California Subclass”). (Id. ¶ 31). Plaintiff brings the following claims on behalf of
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`himself, the Class, and the California Subclass: 1) interception and disclosure of wire, oral,
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`or electronic communications in violation of the federal Wiretap Act, 18 U.S.C. §§ 2510,
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`et seq.; 2) manufacture, distribution, possession, and advertising of wire, oral, or electronic
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`communication interception devices in violation of the federal Wiretap Act, 18 U.S.C. §
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`2512; and 3) violation of the Stored Communications Act, 18 U.S.C. §§ 2701, et seq.
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`Plaintiff brings the following claims on behalf of himself and California Subclass: 1)
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`violation of the California Invasion of Privacy Act, Cal. Pen. Code § 631; 2) violation of
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`the California Invasion of Privacy Act, Cal. Pen. Code § 635; 3) intrusion upon seclusion;
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`and 4) invasion of privacy under the California Constitution. Plaintiff seeks declaratory
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`relief, damages, including punitive damages, restitution, injunctive relief, and attorneys’
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`On March 16, 2021, Defendant Amazon filed a Motion to Compel Arbitration,
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`Dismiss, or, in the Alternative, to Stay. (ECF No. 15). Amazon moves to compel arbitration
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`of Plaintiff’s claims on an individual basis pursuant to the Federal Arbitration Act
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`(“FAA”), 9 U.S.C. §§ 1, et seq., or Delaware law. Amazon further moves to stay or dismiss
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`Case 3:20-cv-02365-WQH-BGS Document 26 Filed 09/15/21 PageID.298 Page 3 of 19
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`any remaining claims. On April 12, 2021, Plaintiff filed an Opposition to the Motion to
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`Compel Arbitration. (ECF No. 16). On April 26, 2021, Amazon filed a Reply. (ECF No.
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`17). On August 3, 2021, the Court heard oral argument on the Motion to Compel
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`Arbitration.
`
`II. CONTENTIONS
`
`Defendant Amazon contends that Plaintiff agreed to arbitrate the claims alleged in
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`the FAC on an individual basis. Amazon contends that the Amazon Flex Terms of Service
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`that took effect on October 3, 2019 (“2019 TOS”) apply in this case because Plaintiff
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`continued to perform deliveries after he “received notice that Amazon was introducing the
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`2019 TOS.” (ECF No. 15-1 at 10). Amazon contends that “[t]he heart of this lawsuit is the
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`allegation that Amazon monitored closed Facebook groups in which Plaintiff and other
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`Amazon Flex drivers discussed their experiences with the Amazon Flex program—
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`including matters central to Flex drivers’ contractual relationship with Amazon.” (Id. at
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`14). Amazon contends that there is no “serious dispute” that Plaintiff’s claims fall within
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`the scope of the arbitration provision. (Id.). Amazon further contends that even if the
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`Amazon Flex Terms of Service that took effect on September 21, 2016 (“2016 TOS”) apply
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`in this case, “its arbitration agreement would be enforceable under California law.” (Id. at
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`17 n.1).
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`Plaintiff Jackson contends that the 2016 TOS apply in this case. Plaintiff contends
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`that “Amazon did not provide notice of the 2019 TOS, [and] Plaintiff never assented to the
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`updated terms.” (ECF No. 16 at 19). Plaintiff contends that he is not required to arbitrate
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`his claims because the Court of Appeals for the Ninth Circuit held in Rittmann v.
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`Amazon.com, Inc., 971 F.3d 904 (9th Cir. 2020), that the arbitration provision in the 2016
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`TOS is void for lack of governing law. Plaintiff contends that the claims alleged in the FAC
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`do not fall within the scope of the arbitration provision because the claims are “about
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`Amazon spying on Plaintiff’s private posts to a private Facebook group” and do not relate
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`to Plaintiff’s participation in the Flex program or performance of services. (Id. at 11).
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`Plaintiff further contends
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`that
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`the arbitration provision
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`is unenforceable and
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`unconscionable.
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`III. FACTS1
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`Plaintiff Jackson is a participant in the Amazon Flex program. The Director of
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`Amazon Flex Technology states in a Declaration that the Flex program “allows Amazon
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`to crowdsource independent contractor delivery partners through a smartphone application
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`known as the Amazon Flex app.” (Paramanandan Decl., ECF No. 15-3 ¶ 3). Participants
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`in the Flex program deliver groceries, packages, and goods using their personal vehicles.
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`To participate in the Flex program, individuals must download the Amazon Flex app, create
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`an account, and agree to the Amazon Flex Terms of Service.
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`The Director states that “[t]here have been multiple versions” of the Amazon Flex
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`Terms of Service. (Id. ¶ 6). The Director states that the 2016 TOS took effect on September
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`21, 2016. The 2016 TOS provides, in relevant part:
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`11. Dispute Resolution, Submission to Arbitration.
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`a) SUBJECT TO YOUR RIGHT TO OPT OUT OF ARBITRATION, THE
`PARTIES WILL RESOLVE BY FINAL AND BINDING ARBITRATION,
`RATHER THAN IN COURT, ANY DISPUTE OR CLAIM, WHETHER
`BASED ON CONTRACT, COMMON LAW, OR STATUTE, ARISING
`OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, TO
`YOUR PARTICIPATION
`IN THE PROGRAM OR TO YOUR
`PERFORMANCE OF SERVICES.
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`(2016 TOS, Ex. A to Paramanandan Decl., ECF No. 15-3 at 13). The 2016 TOS further
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`provides:
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`12. Governing Law.
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`The interpretation of this Agreement is governed by the law of the state of
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`
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`1 Amazon requests that the Court take judicial notice of three Facebook Help Center webpages. (ECF No.
`15-2). The Court declines to take judicial notice of the requested documents because judicial notice is
`unnecessary for this Order. See Asvesta v. Petroutsas, 580 F.3d 1000, 1010 n.12 (9th Cir. 2009) (denying
`request for judicial notice where judicial notice would be “unnecessary”).
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`Washington without regard to its conflict of laws principles, except for
`Section 11 of this Agreement, which is governed by the Federal Arbitration
`Act and applicable federal law.
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`13. Modifications.
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`Amazon may modify this Agreement, including the Program Policies, at any
`time by providing notice to you through the Amazon Flex app or otherwise
`providing notice to you. You are responsible for reviewing this Agreement
`regularly to stay informed of any modifications. If you continue to perform
`the Services or access Licensed Materials (including accessing the Amazon
`Flex app) after the effective date of any modification to this Agreement, you
`agree to be bound by such modifications.
`
`
`(Id. at 14-15).
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`
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`The Director of Amazon Flex Technology states, “Plaintiff Drickey Jackson
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`accepted the 2016 TOS and his Amazon Flex account was activated on or about December
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`6, 2016. He did not opt-out of the arbitration provision in the 2016 TOS.” (Paramanandan
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`Decl., ECF No. 15-3 ¶ 11).
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`
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`The Director states that the 2019 TOS took effect on October 3, 2019. The first page
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`of the 2019 TOS provides, in relevant part:
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`This Agreement updates and replaces any version of the Terms of Service
`you previously accepted. This Agreement takes effect on the earlier date of
`the date on which you click “I agree and accept” in the box below or, if you
`accepted a prior version of the Terms of Service, the first date on which you
`provide Services after Amazon made this Agreement available in the “Legal
`Information” section of the Amazon Flex app and sent to your email address
`a hyperlink to this Agreement (“Effective Date”).
`
`(2019 TOS, Ex. B to Paramanandan Decl., ECF No. 15-3 at 24). The 2019 TOS includes
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`several material terms related to arbitration that differ from the 2016 TOS. (See id. at 29-
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`31).
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`The Director of Amazon Flex Technology states, “When the 2019 TOS went into
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`effect on October 3, 2019, Amazon distributed the 2019 TOS to existing Flex drivers (i.e.,
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`those who had joined the Amazon Flex program and agreed to the TOS before the 2019
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`TOS became effective) via email sent to the email address each such driver agreed to keep
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`current.” (Paramanandan Decl., ECF No. 15-3 ¶ 13). The Director states:
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`Amazon sent the 2019 TOS to Plaintiff via email on October 3, 2019, and
`afterward he performed additional Flex deliveries. Specifically, Plaintiff
`scheduled and completed six scheduled blocks of deliveries in March and
`April of 2020.
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`(Id. ¶ 14).
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`IV. APPLICABLE AGREEMENT
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`Amazon contends that the 2019 TOS applies in this case because Plaintiff “received
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`notice—through the email address that he agreed to keep current—that Amazon was
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`introducing the new 2019 TOS on October 3, 2019, and continued to perform deliveries
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`afterward.” (ECF No. 15-1 at 13). Amazon contends that “Plaintiff does not deny that he
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`accepted the 2016 TOS or that he performed Flex services after October 3, 2019.” (ECF
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`No. 17 at 7). Amazon contends that Plaintiff fails to assert or provide evidence that he
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`“never got the email from Amazon” containing the 2019 TOS. (Id. at 8).
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`Plaintiff contends that the 2016 TOS applies in this case because “Amazon did not
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`provide notice of the 2019 TOS, [and] Plaintiff never assented to the updated terms.” (ECF
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`No. 16 at 19). Plaintiff contends that Amazon fails to provide evidence that Plaintiff ever
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`opened the October 3rd email, viewed the 2019 TOS, or otherwise assented to the 2019
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`TOS. Plaintiff contends that Amazon does not provide the Court with a copy of the email
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`or state “whether the 2019 TOS was sent as a separate email or as part of an email dealing
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`with another aspect of the Amazon Flex program.” (Id. at 19).
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`
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`“In determining whether a valid arbitration agreement exists, federal courts ‘apply
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`ordinary state-law principles that govern the formation of contracts.’” Nguyen v. Barnes &
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`Noble Inc., 763 F.3d 1171, 1175 (9th Cir. 2014) (quoting First Options of Chi., Inc. v.
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`Kaplan, 514 U.S. 938, 944 (1995)). In this case, the law of Washington, Delaware, or
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`California could apply to determine whether the 2016 TOS or 2019 TOS applies. See 2016
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`TOS, Ex. A to Paramanandan Decl., ECF No. 15-3 at 14 (Washington choice-of-law
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`provision); 2019 TOS, Ex. B to Paramanandan Decl., ECF No. 15-3 at 30 (Delaware
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`choice-of-law provision); see also Trans-Tec Asia v. M/V Harmony Container, 518 F.3d
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`1120, 1124 (9th Cir. 2008) (stating that the court determines what law governs contract
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`formation “as if there were no choice of law clause”). The laws of contract formation of
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`Washington, Delaware, and California law are materially the same, and the parties rely
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`primarily on California law. The Court applies California law to determine the applicable
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`agreement but would reach the same result under Washington or Delaware law. See
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`Nguyen, 763 F.3d at 1175 (explaining that the court need not determine what law applies
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`where the laws of the states in question “dictate the same outcome”).
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`“Under California law, mutual assent is a required element of contract formation.”
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`Knutson v. Sirius XM Radio, Inc., 771 F.3d 559, 565 (9th Cir. 2014); see Yakima Cty. (W.
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`Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 388 (Wash. 1993) (same
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`under Washington law); Continental Ins. Co. v. Rutledge & Co., 750 A.2d 1219, 1232 (Del.
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`Chancery Ct. 2000) (same under Delaware law).
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`“Mutual assent may be manifested by written or spoken words, or by
`conduct,” Binder v. Aetna Life Ins. Co., 75 Cal. App. 4th 832, 850 (1999), and
`acceptance of contract
`terms may be
`implied
`through action or
`inaction, see Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-95
`(1991). Thus, “an offeree, knowing that an offer has been made to him but not
`knowing all of its terms, may be held to have accepted, by his conduct,
`whatever terms the offer contains.” Windsor Mills, Inc. v. Collins & Aikman
`Corp., 25 Cal. App. 3d 987, 991 (1972).
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`Knutson, 771 F.3d at 565. “[A]n offeree, regardless of apparent manifestation of his
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`consent, is not bound by inconspicuous contractual provisions of which he is unaware,
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`contained in a document whose contractual nature is not obvious. This principle of
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`knowing consent applies with particular force to provisions for arbitration.” Id. at 566
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`(alteration in original) (quoting Windsor Mills, 25 Cal. App. 3d at 992).
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`“The internet ‘has not fundamentally changed the requirement that mutual
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`manifestation of assent, whether by written or spoken word or by conduct, is the touchstone
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`of contract.’” Dohrmann v. Intuit, Inc., 823 F. App’x 482, 483 (9th Cir. 2020) (quoting
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`Long v. Provide Commerce, Inc., 245 Cal. App. 4th 855, 862 (2016)). Absent actual notice
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`of the terms of an internet contract, mutual assent turns on whether a “reasonably prudent”
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`user would have “inquiry notice” of the “agreement’s existence and contents.” Long, 245
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`Cal. App. 4th at 863 (citing Nguyen, 763 F.3d at 1177). “As the party alleging the existence
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`of a contract, [Amazon] has the burden to prove each and every element of a valid
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`contract—including mutual assent.” Stover v. Experian Holdings, Inc., 978 F.3d 1082,
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`1086 (9th Cir. 2020).
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`
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`In In re Facebook Biometric Information Privacy Litigation, the plaintiffs, current
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`Facebook users, registered to use Facebook and agreed to the terms of use between 2005
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`and 2009. 185 F. Supp. 3d 1155, 1162-64 (N.D. Cal. 2016). On January 30, 2015, Facebook
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`revised the terms of use and included a California choice-of-law provision. Facebook
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`“emailed all users with registered email addresses about this update.” Id. at 1164. The email
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`was titled, “We’re updating our terms and policies and introducing Privacy Basics,” and
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`“contained hyperlinks to the new Terms of Use.” Id. Facebook also provided “jewel
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`notifications” about the update. Id. When a user logged into Facebook, the “notification
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`tray at the top of the site” indicated that the user “had a new message.” Id. When the user
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`clicked the notification, “it would let [the user] know that . . . there [were] new Terms
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`proposed and getting updated.” Id. (second and third alterations in original). The
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`notification “persisted a number of times in case [the user] didn’t visit.” Id. (alteration in
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`original). In addition, Facebook published updates about the new terms of use on its
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`governance page, in the Privacy Basics Center, in the Facebook News Room, and on the
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`terms page. Facebook “took users’ continued use as assent to the terms.” Id.
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`The plaintiffs sued Facebook for unlawfully collecting and storing biometric data
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`derived from users’ faces under the Illinois Biometric Information Privacy Act. Facebook
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`filed a motion to dismiss and motion for summary judgment on the grounds that the
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`California choice-of-law provision in the 2015 terms of use precluded suing on an Illinois
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`statute. The plaintiffs contended that they never assented to the 2015 terms. The District
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`Court for the Northern District of California determined that “Facebook has shown by a
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`preponderance of the evidence that all three plaintiffs agreed to the current user
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`agreement.” Id. at 1167. The court stated:
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`[The plaintiffs] were provided notice that the terms of the user agreement were
`changing through an email from Facebook sent directly to the email addresses
`each plaintiff had on file with Facebook. Each plaintiff -- none of whom
`disputes remaining an active Facebook user to this day . . . -- would also have
`received a “jewel notification” on his individual Facebook newsfeed. This
`individualized notice in combination with a user’s continued use is enough for
`notice and assent.
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`Id.; accord Webber v. Uber Techs., Inc., No. CV 18-2941 PSG-GJS, 2018 U.S. Dist.
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`LEXIS 232200, at *10-12 (C.D. Cal. Sept. 5, 2018) (“Plaintiff Faulkner received an email
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`in November 2016 notifying him that Uber’s Terms had been updated, and that continued
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`use of the service would constitute assent to those Terms. . . . Plaintiff continued to use the
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`App after receipt of that email. . . . Plaintiff[] [was] on reasonable notice of Uber’s Terms,
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`and thus assented to them . . . by continuing to use the service after the Terms were
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`updated.”); cf. Stover, 978 F.3d at 1084-86 (holding that the Stover failed to meet her
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`burden to prove that she had notice of the 2018 terms where the 2014 terms “contained a
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`change-of-terms provision stating that ‘[e]ach time’ Stover ‘accessed . . . the . . . Product
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`Website,’ she would be manifesting assent to ‘the then current’ terms of the agreement,”
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`but there was no indication that Stover “had notice of the changed terms when she visited
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`Experian’s website in 2018”).
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`
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`In this case, the Director of Amazon Flex Technology states in a Declaration that
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`“Plaintiff Drickey Jackson accepted the 2016 TOS and his Amazon Flex account was
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`activated on or about December 6, 2016.” (Paramanandan Decl., ECF No. 15-3 ¶ 11).
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`Plaintiff does not dispute that he assented to the 2016 TOS. The 2016 TOS state, in relevant
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`part:
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`13. Modifications
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`Amazon may modify this Agreement, including the Program Policies, at any
`time by providing notice to you through the Amazon Flex app or otherwise
`providing notice to you. You are responsible for reviewing this Agreement
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`regularly to stay informed of any modifications. If you continue to perform
`the Services or access Licensed Materials (including accessing the Amazon
`Flex app) after the effective date of any modification to this Agreement, you
`agree to be bound by such modifications.
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`(2016 TOS, Ex. A to Paramanandan Decl., ECF No. 15-3 at 14-15). The Director states
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`that Amazon updated the TOS on October 3, 2019. The Director states, “When the 2019
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`TOS went into effect on October 3, 2019, Amazon distributed the 2019 TOS to existing
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`Flex drivers (i.e., those who had joined the Amazon Flex program and agreed to the TOS
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`before the 2019 TOS became effective) via email sent to the email address each such driver
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`agreed to keep current.” (Paramanandan Decl., ECF No. 15-3 ¶ 13). The Director states:
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`Amazon sent the 2019 TOS to Plaintiff via email on October 3, 2019, and
`afterward he performed additional Flex deliveries. Specifically, Plaintiff
`scheduled and completed six scheduled blocks of deliveries in March and
`April of 2020.
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`(Id. ¶ 14). The Court cannot conclude from the allegations in the Complaint or the evidence
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`presented by Amazon that the October 3, 2019, email provided Plaintiff individualized
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`notice of the “agreement’s existence and contents” adequate to demonstrate that Plaintiff
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`assented to the 2019 TOS. Long, 245 Cal. App. 4th at 863 (citing Nguyen, 763 F.3d at
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`1177); see Stover, 978 F.3d at 1086 (“[I]n order for changes in terms to be binding pursuant
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`to a change-of-terms provision in the original contract, both parties to the contract—not
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`just the drafting party—must have notice of the change in contract terms.”). Amazon fails
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`to meet its burden to demonstrate mutual assent to the 2019 TOS. The Court concludes that
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`the 2016 TOS applies in this case.
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`V. GOVERNING LAW
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`Amazon contends that the arbitration provision in the 2016 TOS is not void for lack
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`of governing law. Amazon contends that the Court of Appeals for the Ninth Circuit held in
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`Rittmann v. Amazon.com, Inc., 971 F.3d 904 (9th Cir. 2020), that the arbitration provision
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`in the 2016 TOS is not enforceable under Washington law but “did not address whether
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`some other body of state law could be applied because the parties did not ask the court to
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`apply any other body of state law.” (ECF No. 15-1 at 17). Amazon contends that the
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`arbitration provision in the 2016 TOS is enforceable under California law.
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`Plaintiff contends that pursuant to Rittmann, Plaintiff is exempt from the FAA, and
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`“the arbitration clause in the 2016 TOS is void for lack of governing law.” (ECF No. 16 at
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`18). Plaintiff contends that the 2016 TOS does not make clear whether the parties intended
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`the arbitration provision to remain enforceable in absence of the FAA, and California law
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`“cannot fill the void if the FAA does not apply.” (Id. at 21).
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`In Rittmann v. Amazon.com, Inc., an Amazon Flex driver brought a suit against
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`Amazon for wage and hour violations under federal, California, and Washington law. 971
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`F.3d 904, 907 (9th Cir. 2020), reh’g en banc denied, 2020 U.S. App. LEXIS 30695 (9th
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`Cir. Sept. 25, 2020), cert. denied, 2021 U.S. LEXIS 906 (Feb. 22, 2021). Amazon filed a
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`motion to compel arbitration, asserting that the Flex driver was required to arbitrate his
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`claims pursuant to the 2016 TOS. The District Court for the Western District of
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`Washington denied the motion to compel arbitration, concluding that there was no valid
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`arbitration agreement between Amazon and the Flex driver. The Court of Appeals for the
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`Ninth Circuit affirmed.
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`The court of appeals examined the choice-of-law provision in the 2016 TOS, which
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`states, “These Terms are governed by the laws of the state of Washington without regard
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`to its conflict of laws principles, except for Section 11 of this Agreement [the arbitration
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`provision], which is governed by the Federal Arbitration Act and applicable federal law.”
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`Id. at 920. The court first determined that “[Flex] workers are exempt from the FAA’s
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`coverage provisions.” Id. at 919. The court stated:
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`The FAA contains a number of enforcement mechanisms for private parties
`to compel arbitration pursuant to a valid arbitration agreement. The FAA,
`however, exempts certain contracts from its scope, specifically the
`employment contracts of “seamen, railroad employees, [and] any other class
`of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1; Circuit
`City Stores, Inc. v. Adams, 532 U.S. 105, 118-19 (2001).
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`Id. at 909 (alteration in original). The court determined that “[Flex] drivers’ transportation
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`of goods wholly within a state are [] part of a continuous interstate transportation, and those
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`drivers are engaged in interstate commerce for § 1’s purposes.” Id. at 916. Accordingly,
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`“[Flex] delivery providers fall within the exemption,” and their employment contracts are
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`not subject to the FAA. Id. at 919.
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`The court then rejected Amazon’s contention that “the district court should have
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`severed the choice-of-FAA provision . . . and, thus, Washington law would apply to the
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`TOS in its entirety.” Id. at 920. Applying Washington law, the court determined:
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`Were we to sever the choice-of-FAA clause, the governing law provision
`would state that the TOS is “governed by the law of the state of Washington .
`. ., except for Section 11 of this Agreement.” In that case, the plain language
`of the contract would prohibit applying Washington law to the arbitration
`provision.
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`To escape that result, Amazon would have us go further and sever the entire
`“except for” clause. In light of the fact that the provision expressly treats the
`arbitration provision differently, that approach would violate the principle that
`we are not free to rewrite the contract under the guise of severability. . . .
`Because it is not clear that the parties intended to apply Washington law to
`the arbitration provision in the event the FAA did not apply, we construe
`ambiguity in the contract against Amazon to avoid that result.
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`Amazon’s choice-of-law arguments likewise fail. . . . [W]e cannot sever the
`clause that applies Washington law to the contract “except for Section 11”
`from the governing law provision without impermissibly rewriting the
`contract. Amazon cites no authority that would allow us to conclude that the
`presumption in favor of local law overcomes express contractual language
`that precludes its application.
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`Because there is no law that governs the arbitration provision, we agree with
`the district court that there is no valid arbitration agreement.
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`Id. at 920-21.
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`In this case, Plaintiff is an Amazon Flex driver “exempt from the FAA’s coverage
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`provisions.” Id. at 919. “When a contract with an arbitration provision falls beyond the
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`reach of the FAA, courts look to state law to decide whether arbitration should be
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`compelled nonetheless.” Breazeale v. Victim Servs., Inc., 198 F. Supp. 3d 1070, 1079 (N.D.
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`Cal. 2016); see Rittmann, 971 F.3d at 920. The Court applies the choice-of-law rules of the
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`forum state, which in this case is California. See Pokorny v. Quixtar, Inc., 601 F.3d 987,
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`994 (9th Cir. 2010). “Under California law, the choice-of-law rules differ depending on
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`whether the parties have included a choice-of-law agreement in their contract . . . .” Id. The
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`choice-of-law provision in the 2016 TOS provides:
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`The interpretation of this Agreement is governed by the law of the state of
`Washington without regard to its conflict of laws principles, except for
`Section 11 of this Agreement, which is governed by the Federal Arbitration
`Act and applicable federal law.
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`(2016 TOS, Ex. A to Paramanandan Decl., ECF No. 15-3 at 14). In Rittmann, the court of
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`appeals held that neither the FAA nor Washington law applies to the arbitration provision
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`in the 2016 TOS. See Rittmann, 971 F.3d at 921. The Court concludes that there is no valid
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`choice-of-law provision that applies to the arbitration provision in the 2016 TOS.
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`Where there is no choice-of-law provision, “the forum will apply its own rule of
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`decision unless a party litigant timely invokes the law of a foreign state.”2 Wash. Mut. Bank
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`v. Superior Ct., 24 Cal. 4th 906, 919 (2001) (quoting Bernhard v. Harrah’s Club, 16 Cal.
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`3d 313, 317-318 (1976)); see Islam v. Lyft, Inc., No. 20-CV-3004 (RA), 2021 U.S. Dist.
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`LEXIS 43839, at *47-48 (S.D.N.Y. Mar. 9, 2021) (“[T]he effect of the FAA bring found
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`inapplicable is only that the arbitration clause contains no choice-of-law provision . . . .
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`[T]he contract specifically provided that California law should not apply to the arbitration
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`agreement, but said nothing about the applicability of New York law in the event that the
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`FAA was found not to apply.”). California courts have held that the California Arbitration
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`Act, Cal. Civ. Proc. Code §§ 1281, et seq. (“CAA”), applies even if an agreement does not
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`“explicitly reference the CAA.” Garrido v. Air Liquide Indus. U.S. LP, 241 Cal. App. 4th
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`2 In Rittmann, the forum state was Washington, and the court concluded that the plain language of the
`choice-of-law provision bars application of Washington law to the arbitration provision. There is no
`indication that any party in Rittmann contended that California law applied.
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`833, 841 (2015) (applying California law to an arbitration agreement with a choice-of-FAA
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`provision where the plaintiff was exempt from the FAA); see Lagatree v. Luce, Forward,
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`Hamilton & Scripps, 74 Cal. App. 4th 1105, 1121 (1999) (“Assuming arguendo that the
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`FAA does not apply, we would assess the validity of the parties’ arbitration agreements
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`under the California Arbitration Act.”). The plain language of the 2016 TOS does not
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`preclude application of California law to the arbitration provision in absence of the FAA.
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`The Court applies California state law to determine whether a valid agreement to arbitrate
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`exists in this case.
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`VI. SCOPE OF THE ARBITRATION PROVISION
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`Amazon contends that there is no “serious dispute that the claims in this suit fall
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`within the scope of the arbitration provision.” (ECF No. 15-1 at 14). Amazon contends that
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`“[t]he h