throbber
Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 1 of 16 PageID #:712
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`
`Case No. 19-cv-06415
`
`Judge Mary M. Rowland
`
`
`
`
`
`
`
`
`
`
`AARON MCCLENON, et al.,
`
`Petitioners,
`
`v.
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`POSTMATES INC.,
`
`Respondent.
`
`
`MEMORANDUM OPINION AND ORDER
`
`
`
`Petitioner couriers Aaron McClenon, et al. and Respondent Postmates, Inc.,
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`bring cross motions to compel arbitration and stay the litigation pending the outcome
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`of arbitration [4] [18 & 20] under 9 U.S.C. § 4. For the following reasons, the parties’
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`motions are granted in part and denied in part.
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`BACKGROUND
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`Petitioners are 200 Illinois couriers who work for Respondent Postmates Inc.,
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`an online food delivery platform. (Dkt. 6 at 1; 3). To work for Postmates, each courier
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`must sign a “Fleet Agreement,” which classifies them as independent contractors, not
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`employees. (Id. at Appendix E § 7A).1
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`The Fleet Agreement
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`The Fleet Agreement contains a Mutual Arbitration Provision stating that the
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`parties “agree to resolve any disputes between them exclusively through final and
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`1 Postmates updated its Fleet Agreement on April 3, 2019. Petitioners, however, stopped working for
`Postmates prior to that date. Petitioners are thus subject to and pursued arbitration under Postmates’
`2018 Fleet Agreement which will be discussed herein. (Dkt. 6 at Keller Decl. ¶ 14).
`1
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`

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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 2 of 16 PageID #:713
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`binding arbitration instead of filing a lawsuit in court.” (Id. at § 11A). The Provision
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`contains an express Class Action Waiver and Representative Action Waiver, which
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`provides that “any and all disputes or claims between the parties will be resolved in
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`individual arbitration” and that the parties “waive their right to have any dispute or
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`claim brought, heard or arbitrated as a class and/or collective action” or
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`“representative action.” (Id. at §§ 11Bii-iii).
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`The arbitration requirement applies to “any and all claims between the
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`Parties, including but not limited to those arising out of or relating to this Agreement,
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`the Contractor’s [courier’s] classification as an independent contractor, … and all
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`other aspects of the Contractor’s relationship with Postmates….” (Id. at § 11Ai).
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`Pursuant to a delegation clause, the parties must also use arbitration for disputes
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`regarding the Mutual Arbitration Provision itself (with a specified caveat):
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`Only an arbitrator, and not any federal, state, or local court or agency, shall
`have the exclusive authority to resolve any dispute relating to the
`interpretation, applicability, enforceability, or formation of this Mutual
`Arbitration Provision. However, as stated in Section 11B.IV below, the
`preceding clause shall not apply to the Class Action Waiver and Representative
`Action Waiver.
`
`(Id. at § 11Aii). Section 11Biv states:
`
`
`Notwithstanding any other clause contained in this Agreement, this Mutual
`Arbitration Provision, or the American Arbitration Association Commercial
`Arbitration Rules ("AAA Rules"), any claim that all or part of this Class Action
`Waiver and/or Representative Action Waiver is unenforceable, unconscionable,
`void, or voidable shall be determined only by a court of competent jurisdiction
`and not by an arbitrator. As stated above, all other disputes regarding
`interpretation, applicability, enforceability, or formation of this Mutual
`Arbitration Provision shall be determined exclusively by an arbitrator.
`
`(Id.) (emphasis added).
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`
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`2
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`

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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 3 of 16 PageID #:714
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`To initiate arbitration, a courier must file a demand stating “(1) the name and
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`address of the party seeking arbitration, (2) a statement of the legal and factual basis
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`of the claim, and (3) a description of the remedy sought.” (Id. at § 11Bi). Arbitration
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`is administered by the American Arbitration Association (“AAA”) under its
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`Commercial Arbitration Rules and “Postmates shall pay the arbitrator’s and
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`arbitration fees and costs, unless applicable law requires otherwise.” (Id. at §§ 11Biv;
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`11Bvi).
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`Petitioners’ Arbitration Demands
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`
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`On March 6, 2019, Petitioners’ counsel informed Postmates that it represents
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`more than 3,000 Postmates couriers in California and Illinois who claim Postmates
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`has misclassified them as independent contractors. (Id. at Appendix A). Counsel
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`represented that the couriers planned to “proceed with every arbitration
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`simultaneously” which would “obligate Postmates to pay AAA more than $20
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`million—” a number that “will continue to grow, as roughly 500 additional drivers
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`engage our firm each week.” (Id.) Given this expense, counsel offered to discuss
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`alternative processes for resolving the claims. (Id.) Despite attempts to resolve the
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`matter in the following months, the parties were unable to come to a mutually
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`agreeable solution. (Dkt. 6 at 5).
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`
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`On April 22, 2019, Petitioners’ counsel filed an arbitration demand with AAA
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`on behalf of 4,925 California Postmates couriers and on May 13, 2019, filed a demand
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`on behalf of additional claimants, including the 200 Illinois Petitioners here. (Dkt. 17
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`at Exhibits B-E). Both demands were filed as a single document reciting the
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`3
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`

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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 4 of 16 PageID #:715
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`claimants’ grievances and an attached spreadsheet listing the individual claimants.
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`(Id. at Evangelis Decl. ¶¶ 4-5). AAA determined that it would administer the
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`arbitrations and assessed filing fees payable by Postmates under the Fleet
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`Agreement. (Dkt. 6 at Keller Decl. ¶ 17).
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`On May 31, 2019, AAA contacted Postmates regarding its position on the
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`assessed fees and arbitration demands. (Id. at ¶ 18). Postmates responded that in its
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`view no arbitration proceedings had begun because the couriers’ arbitration demands
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`were improper under the Fleet Agreement. (Id. at Exhibit G). For example, Postmates
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`argued that the demands had been filed as “one, mass arbitration demand” which
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`“circumvents the Fleet Agreement’s express requirement that all arbitrations must
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`take place on an individualized basis.” (Id.).
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`On June 7, 2019, AAA informed the parties that the couriers’ demands were
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`proper under AAA’s rules and that if Postmates had an issue regarding the substance
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`or manner of the demands, it could raise that issue with the appointed arbitrator. (Id.
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`at Exhibit I). AAA further stated that it would decline to administer the couriers’
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`claims unless Postmates paid $11,022,400 in administrative filing fees by June 13,
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`2019. (Id.)
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`On June 10, Postmates reiterated its objection that the couriers “exploited
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`AAA’s rules by filling a collective demand” and requested that AAA allow Postmates
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`to pay arbitration fees as cases are administered, rather than for all cases at once.
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`(Id. at Exhibit J). In response, Petitioners’ counsel re-filed individual demands for
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`each courier using AAA’s individual demand form. (Id. at Keller Decl. ¶ 24).
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`4
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`

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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 5 of 16 PageID #:716
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`Postmates maintained that the demands, although served individually, were still
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`deficient because they “continued to assert generic claims that were copied and
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`pasted thousands of times” and did not recite the amount in controversy asserted by
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`each courier. (Dkt. 17 at Evangelis Decl. ¶ 12). Postmates declined to pay AAA’s filing
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`fees by June 13, 2019. (Dkt. 6 at Keller Decl. ¶ 25).
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`On June 17, 2019, AAA informed the parties that the couriers’ demands were
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`sufficient to trigger arbitration, but that it would decline to administer the cases
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`unless all fees were paid. (Id. at Exhibit M). AAA suggested that Postmates could pay
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`an initial fee of $300.00 per claimant while the parties further considered mediation
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`or other options. (Id.) As neither party agreed to that solution, AAA closed the cases.
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`(Id. at Exhibit P).
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`Petitioners Seek Court Intervention
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`
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`On June 3, 2019, Petitioners’ filed a petition to compel arbitration in the
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`Northern District of California on behalf of the California couriers. The California
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`couriers moved to compel arbitration and for an order that Postmates pay arbitration
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`filing fees. Postmates filed a cross-motion to compel arbitration requesting that
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`petitioners refile their demands as individual arbitration demands and proceed to
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`arbitration on an individual basis. The court granted the motions, but only insofar as
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`they sought an order compelling arbitration. Adams v. Postmates Inc., 414 F. Supp.
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`
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`5
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`

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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 6 of 16 PageID #:717
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`3d 1246 (N.D. Cal. 2019). The court denied petitioners’ request for fees and Postmates’
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`request that petitioners refile their demands. 2 Id.
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`On September 26, 2019 Petitioners, Illinois couriers, filed a Petition to Compel
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`Arbitration with this Court. As in the California proceedings, the parties each moved
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`to compel arbitration in accordance with the Fleet Agreement.
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`
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`LEGAL STANDARDS
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`Under the Federal Arbitration Act (“FAA”), “[a] written provision in … a
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`contract… to settle by arbitration a controversy thereafter arising out of such contract
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`… shall be valid, irrevocable, and enforceable.” 9 U.S.C. § 2. The Act “mandates that
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`district courts shall direct parties to proceed to arbitration on issues as to which an
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`arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S.
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`213, 218 (1985) (emphasis in original). It reflects a “’‘liberal federal policy favoring
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`arbitration agreements,”’ AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 346 (2011)
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`(quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)),
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`and places ‘“arbitration agreements on an equal footing with other contracts.”’ Gore
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`v. Alltel Comm’ns, LLC, 666 F.3d 1027, 1032 (7th Cir. 2012) (quoting Concepcion, 563
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`U.S. at 339). “When deciding whether parties agreed to arbitrate a certain matter,
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`courts generally should apply ordinary state-law principles that govern the formation
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`of contracts.” Druco Rest., Inc. v. Steak N Shake Enterp., Inc., 765 F.3d 776, 781 (7th
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`Cir. 2014).
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`2 That order has been appealed by Postmates. Postmates v. Adams, No. 19-17362 (9th Cir. 2020).
`Postmates’ motion to stay while the appeal was pending was denied by the district court. Adams v.
`Postmates, Inc., No. 19-3042 SBA, 2020 WL 1066980 (N.D. Cal. Mar. 5, 2020).
`6
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`

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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 7 of 16 PageID #:718
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`Under the FAA, a “party aggrieved by the alleged failure, neglect, or refusal of
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`another to arbitrate under a written agreement for arbitration may petition any
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`United States district court … for an order directing that such arbitration proceed in
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`the manner provided for in such agreement.” 9 U.S.C. § 4. Courts deciding motions to
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`compel arbitration apply a summary judgment standard in accordance with Federal
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`Rule of Civil Procedure 56(c). Tickanen v. Harris & Harris, Ltd., 461 F.Supp.2d 863,
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`866 (E.D. Wis. 2006); Meyer v. Uber Technologies, Inc., 868 F.3d 66, 74 (S.D.N.Y.
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`2017). Movants are required to “provide sufficient evidence in support of their claims
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`such that a reasonable jury could return a verdict for them under applicable law.”
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`Friends for Health: Supporting North Shore Health Center v. PayPal, Inc., No. 17 C
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`1542, 2018 WL 2933608, at *3 (N.D. Ill. June 12, 2018) (internal quotations omitted).
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`The Court may consider exhibits and affidavits regarding the arbitration agreement.
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`Id.
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`
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`ANALYSIS
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`The parties agree that the Mandatory Arbitration Provision is valid and that
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`Petitioner’s misclassification claims must be resolved through arbitration.
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`Consequently, Petitioners argue that the Court should compel Postmates to pay the
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`filing fees necessary to commence arbitrations with the AAA and all future
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`arbitration fees, as required by the Fleet Agreement. (Dkt. 6 at Exhibit E § 11Bvi).
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`Postmates counters that no fees are due because Petitioners’ demands are inadequate
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`under the Fleet Agreement which requires that arbitration proceed on an individual
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`basis. According to Postmates, Petitioners are attempting to proceed with arbitration
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`7
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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 8 of 16 PageID #:719
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`on a de facto class-wide basis in violation of the Class Action and Representative
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`Action Waivers. Hence, Postmates seeks an order compelling Petitioners to refile
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`their demands and proceed with arbitration on an individual basis.
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`Postmates’ Request for Individual Arbitration
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`Postmates asks the Court to enter an order “(1) requiring each Petitioner to
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`refile their demand as an individual arbitration demand that sets forth the facts and
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`legal theories of relief, and the amount in controversy, applicable to the particular
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`Petitioner; and (2) requiring each Petitioner to proceed to arbitration on an individual
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`basis—i.e., without improperly invoking the benefits of class or collective arbitration,
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`such as collective administration by the AAA, conditioning the commencement of one
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`arbitration on the commencement of all arbitrations and payment of all fees, or
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`objecting to a payment plan that compensates AAA for arbitrations as they proceed
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`and are prosecuted.” (Dkt. 20 at 2).
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`As a threshold matter, the Court must determine whether it—or an
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`arbitrator— has the authority to determine whether Petitioners’ demands contravene
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`the Fleet Agreement’s requirement of individual arbitration. The Mutual Arbitration
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`Provision contains a delegation clause which confers to the arbitrator the “exclusive
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`authority to resolve any dispute relating to the interpretation, applicability,
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`enforceability, or formation of the[e] Mutual Arbitration Provision.” (Dkt. 6 at Exhibit
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`E § 11Aii).3 Under this clause alone, the authority to interpret the Class Action and
`
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`3 Postmates argues that the issue of whether Petitioners seek class or collective arbitration cannot be
`delegated to an arbitrator; it must be decided by a court. (Dkt. 17 at 11). It is well-settled that, although
`courts generally resolve questions of arbitrability, the parties may delegate to an arbitrator whether
`an issue is subject to arbitration so long as they do so “clear[ly] and unmistakabl[y].” Henry Schein,
`8
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`

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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 9 of 16 PageID #:720
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`Representative Action Waivers and determine whether Petitioners’ demands violate
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`these provisions would fall to the arbitrator, not the Court.
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`The delegation clause does contain a limited exception related to the Class
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`Action and Representative Action Waivers: “[A]s stated in Section 11B.IV below, the
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`preceding clause shall not apply to the Class Action Waiver and Representative
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`Action Waiver.” (Id.) Section 11Biv, in turn, states that “any claim that all or part of
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`this Class Action Waiver and/or Representative Action Waiver is unenforceable,
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`unconscionable, void, or voidable shall be determined only by a court of competent
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`jurisdiction and not by an arbitrator.”
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`The parties disagree about the scope of the exception to the delegation clause.
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`Petitioners maintain that the exception is limited to challenges that the Class Action
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`or Representative Action Waiver is unenforceable, unconscionable, void, or voidable.
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`Because the parties agree that the provisions are enforceable and valid, Petitioners
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`argue that Postmates must raise their objections about Petitioners’ arbitration
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`demands to an arbitrator and not the Court. Postmates contends that § 11Aii exempts
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`all issues regarding the Class Action and Representative Action Waivers from the
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`delegation clause, and that § 11Biv merely lists examples of the types of exempted
`
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`Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 530 (2019) (citing First Options of Chicago, Inc. v.
`Kaplan, 514 U.S. 938, 944-45 (1995)). This includes issues regarding whether the parties seek class or
`collective arbitration. See Herrington v. Waterstone Mortg. Corp., 907 F.3d 502, 507 fn. 3; 511 (7th Cir.
`2018). A delegation clause is one way “parties can agree to arbitrate gateway questions of arbitrability,
`such as whether the parties have agreed to arbitrate [a particular issue] or whether their agreement
`covers a particular controversy.” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 66; 68-69; 72 (2010)
`(enforcing delegation clause similar to that in Fleet Agreement providing that “[t]he Arbitrator, and
`not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute
`relating to the interpretation, applicability, enforceability or formation of this Agreement including,
`but not limited to any claim that all or any part of this Agreement is void or voidable.”). Postmates,
`the drafter of this agreement, does not challenge the validity of the delegation clause at issue here.
`9
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`

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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 10 of 16 PageID #:721
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`challenges to those provisions. Thus, it argues that the Court must consider whether
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`Petitioners’ demands violate the Class Action and/or Representative Action Waiver.
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`
`
`A federal court must “apply[] general state-law principals of contract
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`interpretation to the interpretation of an arbitration agreement”. Volt Info. Scis., Inc.
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`v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475 (1989). Under
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`Illinois law, “[a] contract is to be construed as a whole” and “meaning and effect must
`
`be given to every part of the contract including all its terms and provisions, so no part
`
`is rendered meaningless or surplusage unless absolutely necessary.” Coles-Moultrie
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`Elec. Co-op. v. City of Sullivan, 709 N.E.2d 249, 253 (Ill. App. Ct. 1999). Unambiguous
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`terms must be enforced according to their plain language, Regency Commercial
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`Assocs., LLC v. Lopax, Inc., 869 N.E.2d 310, 316 (Ill. App. Ct. 2007), but where there
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`is silence or ambiguity as to who should decide an issue, federal courts must apply a
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`presumption against arbitration. First Options, 514 U.S. at 944-45 (“Courts should
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`not assume that the parties agreed to arbitrate arbitrability unless there is clear and
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`unmistakable evidence that they did so.”) (internal quotations omitted).
`
`
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`The parties primarily base their respective interpretations of the delegation
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`clause on the plain language of §§ 11Aii and 11Biv. Nevertheless, the Court begins
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`by briefly addressing Postmates’ argument that “Petitioners’ interpretation at best
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`highlights an ambiguity in the reach of the delegation clause’s carve-out” and
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`therefore, the Court should apply the First Options presumption against arbitration.
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`(Dkt. 33 at 6). “An ambiguity does not exist simply because the parties disagree as to
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`the meaning of a contractual provision[,] [r]ather an ambiguity exists when the
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`
`10
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`

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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 11 of 16 PageID #:722
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`contractual provision contains language that is susceptible to more than one
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`reasonable interpretation.” Ringgold Capital IV, LLC v. Finley, 993 N.E.2d 541, 547
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`(Ill. App. Ct. 2013). This is a determination courts must make independently of the
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`parties’ contentions. Id. The Court does not believe §§ 11Aii or 11Biv are ambiguous;
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`the Fleet Agreement “clearl[y] and unmistakabl[y]” confers to the arbitrator the
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`authority to resolve issues concerning any dispute regarding the Mutual Arbitration
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`Provision with one exception: a challenge to the Class Action waiver as unenforceable,
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`unconscionable, void, or voidable. First Options, 514 at 944-45. This is consistent with
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`the approach of other federal courts in this district when interpreting similar
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`language in delegation clauses. See e.g., Lee v. Uber Techs., Inc., 208 F. Supp. 3d 886,
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`891 (N.D. Ill. 2016) (delegation clause providing that ‘“disputes arising out of or
`
`relating to interpretation or application of this Arbitration Provision, including the
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`enforceability, revocability or validity of the Arbitration Provision or any portion of
`
`the Arbitration Provision[ ] ... shall be decided by an Arbitrator and not by a court or
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`judge”’ met the “clear and unmistakable” standard); Kemph v. Reddam, No. 13 CV
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`6785, 2015 WL 1510797, at *4 (N.D. Ill. Mar. 27, 2015) (reaching same conclusion
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`regarding delegation clause providing that ‘“any dispute ... under this loan agreement
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`will be resolved by binding arbitration” and “defin[ing] ‘dispute’ as ‘including any
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`issue concerning the validity, enforceability, or scope of this loan or the Arbitration
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`agreement.’”) 4
`
`
`4 The Mutual Arbitration Provision’s express incorporation of the AAA Rules is further evidence that
`the parties clearly and unmistakably delegated arbitrability issues to an arbitrator. (See Dkt. 6 at
`Exhibit E § 11Bvi). Vergara v. Nintendo of Am. Inc., No. 19 C 6374, 2020 WL 2571903, at *3 (N.D. Ill.
`11
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`

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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 12 of 16 PageID #:723
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`
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`In light of the plain language of the delegation clause, the Court concludes that
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`its exception is limited to challenges to the enforceability of the Class Action and
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`Representative Action Waivers. The relevant language reads, “[A]s stated in Section
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`11BIV below, the preceding clause [conferring the arbitrator with the authority to
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`determine arbitrability] shall not apply to the Class Action Waiver and
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`Representative Action Waiver.” (Dkt. 6 at Exhibit E § 11Aii) (emphasis added). In the
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`Court’s view, the language is unambiguous that the prefacing phrase—“as stated in
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`Section 11BIV”— limits the reach of the broader phrase that follows—“shall not
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`apply”— to what is stated in § 11Biv: claims that the Class Action and/or
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`Representative Action Waivers are “unenforceable, unconscionable, void, or
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`voidable.” (Id.)
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`
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`When considering the California couriers’ motion to compel, the Adams court
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`adopted the same interpretation of nearly identical language albeit a different version
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`of the Fleet Agreement. Adams, 414 F. Supp. 3d at 1253-54. There the delegation
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`clause exception read: “However, as stated in Section 10Biv below, the preceding
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`clause shall not apply to any dispute relating to or arising out of the Class Action
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`Waiver and Representative Action Waiver….” Id. at 1252. Section 10Biv was identical
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`to Section 11Biv in the present version of the Fleet Agreement. Id. Rejecting the same
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`proposed interpretation of these terms as Postmates currently advances, the Court
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`concluded:
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`
`
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`[T]he exception to the delegation clause is limited specifically to challenges
`to the enforceability of the Class Action and Representative Action
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`May 21, 2020) (collecting cases) (“[A]n arbitration agreement’s incorporation of the AAA rules qualifies
`as a ‘clear and unmistakable’ agreement to arbitrate arbitrability.”).
`12
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`

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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 13 of 16 PageID #:724
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`Waivers—and not more generally to “any dispute” concerning the waivers,
`as Postmates contends. … By prefacing the exception with “as stated in
`Section 10Biv below,” the maxims of contract interpretation require the Court
`to construe “any dispute” in tandem with the provisions of Section 10Biv.
`
`
`
`
`
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`Id. at 1253-54 (emphasis in original).
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`
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`Postmates argues that “the only way to read the two clauses that does not
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`nullify one of the provisions or render it meaningless” is that “the specific enumerated
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`claims in Section 11Biv illustrate,” rather than restrict, “the types of claims that fall
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`within the general carve-out in Section 11Aii.” (Dkt 33 at 6) (emphasis in original)
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`(internal quotations and citations omitted). But this interpretation itself renders the
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`more specific exception in Section 11Biv superfluous, as challenges to the
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`enforceability of the Class Action and/or Representative Action Waivers would always
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`be encompassed in the broader prohibition that the delegation clause “shall not apply
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`to the Class Action Waiver and Representative Action Waiver.” (Id. at Exhibit E §
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`11Aii); see also Adams, 414 F. Supp. 3d at 1254 (“Construing the ‘any dispute’
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`language as a separate exception would impermissibly render the more specific
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`provisions in Section 10Biv superfluous, since ‘any dispute’ would always include a
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`claim that the Waivers are unenforceable.”).
`
`
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`Moreover, Postmates asks the Court to ignore the plain meaning of the phrase
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`“as stated” and ascribe it a meaning akin to “as illustrated by” or “including but not
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`limited to”. (Dkt. 20 at 10; Dkt. 33 at 6). The Court, however, must “presume[ ] the
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`provisions [in a contract] are purposefully inserted and th[at] language is not
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`employed idly.” Coles-Moultrie Elec. Co-op., 709 N.E.2d at 253. Several provisions in
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`the Fleet Agreement, such as § 11Ai, use the phrase “including but not limited to,”
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`13
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`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 14 of 16 PageID #:725
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`suggesting that if the parties truly meant to ascribe that meaning to the phrase “as
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`stated” they would have done so explicitly. (See Dkt. 6 at Exhibit E §§ 1C, 2A, 2B, 3C,
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`6A, 6B, 7B, 8A, 10A, 10B, 10C, 11Ai, and 12Bviii). The Court’s interpretation upholds
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`the plain meaning of §§11Aii and 11Biv and reads them together to avoid rendering
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`either provision superfluous.
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`
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`In sum, the Court concludes that the Fleet Agreement delegates to the
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`arbitrator the exclusive authority to resolve Postmates’ claims that Petitioners’
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`arbitration demands violate the Class Action and Representative Action Waivers by
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`seeking de facto class arbitration. As such, the Court declines to consider the merits
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`of the parties’ arguments on that issue and leaves them for an arbitrator to resolve.5
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`Postmates’ requests that the Court order Petitioners to refile their demands and
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`proceed with arbitration without resorting to certain collective arbitration tactics are
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`denied.
`
`Petitioners’ Request for Fees
`
`
`
`The Court also declines to grant the Petitioners’ request that the Court order
`
`Postmates to “(1) pay all arbitration filing fees and arbitration retainers necessary to
`
`proceed with Petitioners’ demands for arbitration within 14 days of the fees being
`
`invoiced by AAA, and (2) pay any subsequent invoices related to Petitioners’
`
`
`5 Postmates alerts the Court of its concern that “unless the Court addresses this issue, Postmates may
`be left with no forum in which to advance its argument” because in the ongoing Adams proceedings in
`California, the “AAA refused to appoint an arbitrator to answer that question [regarding whether
`Petitioners seek de facto class arbitration] upon Postmates’ request.” (Dkt. 33 at fn. 2). While the Court
`is frustrated for the hundreds of couriers and for Postmates that they have been unable to have the
`merits of the claims heard and resolved while the lawyers have engaged in the procedural gymnastics,
`the law on arbitration agreements and the language of the Fleet Agreement, drafted by Postmates,
`ties the Court’s hands.
`
`
`
`14
`
`

`

`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 15 of 16 PageID #:726
`
`arbitrations within 14 days of receiving those invoices.” (Dkt. 6 at 12). As the Adams
`
`court observed, when an arbitration agreement, such as the Fleet Agreement at issue,
`
`incorporates the AAA’s Rules, “the payment of arbitration fees, including related
`
`expenses, is a procedural condition precedent to be decided by the arbitrator,” not the
`
`Court. No. 3:19-cv-03042-SBA, Dkt. 253 at 13 (citing Dealer Computer Servs., Inc. v.
`
`Old Colony Motors, Inc., 588 F.3d 884, 887 (5th Cir. 2009)); see also Lumbermens Mut.
`
`Cas. Co. v. Broadspire Mgmt. Servs., Inc., 623 F.3d 476, 482 (7th Cir. 2010) (citing
`
`Dealer approvingly). Further, ordering the payment of all fees up front would be
`
`premature, as Postmates challenges this as a collective arbitration tactic. The Court
`
`must give the arbitrator a chance to determine whether conditioning the start of any
`
`one arbitration on the payment of fees for all related arbitration demands
`
`contravenes the Fleet Agreement.
`
`CONCLUSION
`
`For the foregoing reasons, Petitioners’ Motion to Compel Arbitration and
`
`
`
`
`Postmates’ Cross-Motion to Compel Arbitration and Stay Proceedings are granted in
`
`part and denied in part. The Court grants the motions insofar as they seek an order
`
`compelling arbitration in accordance with the Mandatory Arbitration Provision.
`
`Under §4 of the FAA and the Fleet Agreement, the parties are obligated to arbitrate
`
`Petitioners’ misclassification claims and are hereby ordered to do so. The Court also
`
`concludes that the parties must arbitrate any dispute that Petitioners’ demands do
`
`not comply with the Fleet Agreement. The Court denies the parties request for all
`
`other forms of relief.
`
`
`
`15
`
`

`

`Case: 1:19-cv-06415 Document #: 51 Filed: 07/20/20 Page 16 of 16 PageID #:727
`
`
`
`Accordingly, the Court stays this action “until arbitration has been had in
`
`accordance with the terms of the [applicable Fleet Agreement].” 9 U.S.C. § 3. The
`
`Clerk shall administratively close this action. Petitioners shall serve a copy of this
`
` E
`
`
`
` N T E R:
`
`MARY M. ROWLAND
`United States District Judge
`
`
`
`Order on the arbitrator.
`
`
`
`
`
`Dated: July 20, 2020
`
`
`
`
`
`
`
`16
`
`

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