`
`
`DINO N. THEODORE,
`
`and
`
`
`
`ACCESS WITH SUCCESS, INC.,
`
`
`
`Plaintiffs,
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`
`UBER TECHNOLOGIES, INC.,
`
`
`
`
`
`
`
`
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`CIVIL ACTION NO.
`18-cv-12147-DPW
`
`
`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 1 of 18
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`
`MEMORANDUM AND ORDER
`March 3, 2020
`
`Dino Theodore and Access with Success, Inc. bring this
`
`action seeking permanent injunctive relief barring an allegedly
`discriminatory practice by Uber Technologies, Inc. of not
`providing wheelchair accessible vehicles to all areas of the
`Commonwealth of Massachusetts, or at least those currently
`served by Uber. In particular, Mr. Theodore and Access with
`Success contend in their now-operative second amended complaint
`that Uber’s failure to provide wheelchair accessible vehicles in
`the suburb where Mr. Theodore resides, northwest of Boston near
`the border with New Hampshire, violates Title III of the
`Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.
`
`Uber has moved for an order to compel arbitration of all
`claims, under the Terms and Conditions to which Uber contends
`Mr. Theodore agreed when he created his account. More
`specifically, Uber argues that, at a minimum, an arbitrator
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 2 of 18
`
`should decide at the threshold the arbitrability of the claims
`set forth by Mr. Theodore and Access with Success under the
`delegation clause of the Terms and Conditions.
`In opposition, Mr. Theodore and Access with Success contend
`that there was never any valid written agreement between Mr.
`Theodore and Uber through which the parties agreed to arbitrate
`the claims set forth in Plaintiffs’ second amended complaint.
`I. BACKGROUND
`
`A.
`
`Factual Background 
`Mr. Theodore is a 58-year-old practicing attorney, who is
`paralyzed from the chest down; he lives in Dracut,
`Massachusetts. Due to his condition and other physical
`setbacks, he has begun to rely more heavily on a power
`wheelchair that does not allow him to use an automobile equipped
`with hand controls, which he otherwise could drive.
`Access with Success is a non-profit corporation, whose
`“members are able-bodied individuals and qualified individuals
`with disabilities as defined by the ADA.” Mr. Theodore serves
`as a member and a director of Access with Success, with whom he
`has filed at least 45 federal actions as a co-plaintiff.
`
`In October 2016, the Massachusetts Bay Transportation
`Authority began working with Uber, as well as its competitor
`ride-share company, Lyft Inc., to introduce a pilot program to
`provide subsidized rides in wheelchair accessible vehicles for
`
` 
`
`2
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 3 of 18
`
`disabled passengers in a specific region of the Commonwealth.1
`Dracut is outside the region served by the RIDE program, which
`is where Uber’s pilot program operates; consequently, Uber
`allegedly has no wheelchair accessible vehicles available for
`Mr. Theodore to take from his home.
`
`Massachusetts General Law c. 161A provides statutory
`authority for the MBTA, including the definition of its “area
`constituting the authority.” M.G.L. c. 161A § 1 (the “area
`constituting the authority” of the MBTA is “the service area of
`the authority consisting of the 14 cities and towns, the 51
`cities and towns, and other served communities,” which are all
`defined terms under the statute). Dracut is included under the
`“other served communities” within the “area constituting the
`authority” of the MBTA, id., as well as the Lowell Regional
`
` 
`1 The pilot program is designed to operate within the region that
`is served by the MBTA’s para-transit service, “The RIDE,” which
`provides transportation for people who have a disability that
`prevents them from using typical MBTA services such as buses,
`subways, or trolleys.
` To provide context for this Memorandum, I take notice that
`MBTA is of the view that, “[u]nder the ADA, paratransit
`functions as a safety net. It is not intended to be a
`comprehensive system of transportation, and it’s different from
`medical or human services transportation.” See generally
`https://www.mbta.com/accessibility/the-ride (last visited Mar.
`3, 2020). The RIDE program is available in 58 cities and towns
`“in the greater Boston area…” Id. Dracut, Massachusetts is
`outside the RIDE Service Area. As of March 2017, the pilot
`program was expanded to “all eligible users of the RIDE.” See
`https://www.mass.gov/news/governor-baker-mbta-celebrate-
`expansion-of-the-rides-on-demand-paratransit-service (last
`visited Mar. 3, 2020).
`
` 
`
`3
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 4 of 18
`
`Transit Authority, under M.G.L. c. 161B § 2. “The area
`constituting the authority and the inhabitants thereof are … a
`body politic and corporate, and a political subdivision of the
`commonwealth, under the name of Massachusetts Bay Transportation
`Authority.” M.G.L. c. 161A § 2. The MBTA’s organic statute
`provides that “no person shall, on the grounds of… handicap, be
`denied participation in, or the benefits of, or be otherwise
`subjected to discrimination under any program or activity
`administered or operated by or for the authority.” M.G.L. c.
`161A § 5(a). Within the MBTA’s statutory authority is the power
`to “conduct research… experimentation… and development, in
`cooperation with the [mass transit division within the]
`department [of transportation], and other governmental agencies
`and private organizations when appropriate, with regard to mass
`transportation … services.” M.G.L. c. 161A § 3(l).
`
`On October 4, 2016, Mr. Theodore created an account on
`Uber’s website and downloaded the app to his smartphone. None
`of the options presented for his desired destination included a
`wheelchair accessible vehicle, and after doing more research,
`Mr. Theodore concluded that this service was not available and
`deleted the app from his phone. On July 12, 2018, after hearing
`about the availability of Uber wheelchair accessible vehicles,
`Mr. Theodore logged onto the website and began to “sign-up”
`again; however, he did not complete the process once he
`
` 
`
`4
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 5 of 18
`
`determined that Uber’s wheelchair accessible vehicles were not
`available to him in Dracut.
`B.
`
`Questions Presented
`Uber’s motion to compel arbitration presents the need to
`make determinations regarding who will decide the applicability
`of the Terms and Conditions of the account agreement which Mr.
`Theodore created on October 4, 2016.2
`These determinations will be applicable both to Mr.
`Theodore and Access with Success.3
`
` 
`2 In this connection, I note at the outset my conclusion that Mr.
`Theodore did not effectively cancel his account by his
`collateral act of deleting the related app. Indeed, the Terms
`and Conditions of that account agreement state that the dispute
`resolution section survives cancellation of a user’s account.
`Thus, I find the argument by Mr. Theodore and Access with
`Success that his deletion of the app had the effect of freeing
`Mr. Theodore from the Terms and Conditions of the account
`agreement to be unavailing.
`3 If Mr. Theodore is compelled to arbitrate, then so too is
`Access with Success because it is suing either as a membership
`organization, or as his alter ego. Access with Success has
`served as an organizational co-plaintiff for Mr. Theodore on
`numerous occasions. In fact, it has joined Mr. Theodore as a
`co-plaintiff in the last 45 federal lawsuits filed by Access
`with Success. “Associations suing in a representative capacity
`are bound by the same limitations and obligations as their
`members . . .” Klay v. All Defendants, 389 F.3d 1191, 2012-03
`(11th Cir. 2004) (citing Arizonans for Official English v.
`Arizona, 520 U.S. 43, 65-66 (1997)). Access with Success
`alleges it sues as a co-plaintiff here based on its “injury as a
`result of the defendant’s actions or inactions . . . [and]
`because of its association with Dino Theodore and his claims . .
`.” Accordingly, it is a co-plaintiff in its representative
`capacity and would be bound by enforced arbitration against Mr.
`Theodore.
` Moreover, “where corporations are formed, or availed of, to
`carry out the objectives and purposes of the corporations or
`5
`
` 
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 6 of 18
`
`II. STANDARD OF REVIEW
`A party seeking to compel arbitration “must demonstrate
`
`that a valid agreement to arbitrate exists, that the movant is
`entitled to invoke the arbitration clause, that the other party
`is bound by that clause, and that the claim asserted comes
`within the clause’s scope.” Soto-Fonalledas v. Ritz-Carlton San
`Juan Hotel Spa & Casino, 640 F.3d 471, 474 (1st Cir. 2011).
`Section 2 of the Federal Arbitration Act provides that an
`arbitration clause in a written contract “shall be valid,
`irrevocable, and enforceable, save upon such grounds as exist at
`law or in equity for the revocation of any contract.” 9 U.S.C. §
`2. Congress passed the FAA to put into place a “policy favoring
`arbitration.” AT&T Mobility, LLC v. Concepcion¸563 U.S. 333, 339
`(2011). Nevertheless, “the FAA does not require parties to
`arbitrate when they have not agreed to do so.” Cullinane v. Uber
`Techs., Inc., 893 F.3d 53, 60 (1st Cir. 2018) (quoting Volt
`
` 
`persons controlling them,” agency principles may dictate that
`the controlling person(s) and the entity not be regarded as
`separate. My Bread Baking Co. v. Cumberland Farms, Inc., 233
`N.E.2d 748, 751 (Mass. 1968); see also Iantosca v. Benistar
`Admin. Services, Inc., 567 Fed. Appx. 1, 7 (1st Cir. 2014)
`(citing My Bread as the “seminal Massachusetts case on
`disregarding the corporate form” and noting that it “does not
`suggest that making a ‘sham’ finding is a prerequisite” to do
`so)). Without prejudice to further factual development to test
`the proposition, I am presently of the view that the principles
`of My Bread appear to contemplate the circumstances here, given
`Mr. Theodore’s office as a director of Access with Success.
`6
`
` 
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 7 of 18
`
`Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ.,
`489 U.S. 468, 478 (1989) (internal quotation marks omitted)).
`III. APPLICABILITY OF THE “TERMS AND CONDITIONS”
`In answering whether or not the claims raised by Mr.
`
`Theodore and Access with Success should be resolved by
`arbitration, I first address the question “whether . . . there
`exists a written agreement to arbitrate.” Lenfest v. Verizon
`Enter. Solutions, LLC, 52 F. Supp.3d 259, 262-63 (D. Mass.
`2014). “The burden of making th[e] showing [that there is a
`written agreement to arbitrate] lies on the party seeking to
`compel arbitration.” Id. (citing Dialysis Access Ctr., LLC v.
`RMS Lifeline, Inc., 638 F.3d 367, 375 (1st Cir. 2011)). Plainly
`there is such a written contract here. See note 2, supra.
`However, if such a written contract containing the arbitration
`agreement was never binding on the plaintiffs, its arbitration
`clause cannot be enforced against them.
`
`When determining whether the parties agreed to arbitrate,
`courts apply “ordinary state-law principles that govern the
`formation of contracts.” Cullinane, 893 F.3d at 61 (citing First
`Options of Chi., Inc., v. Kaplan, 514 U.S. 938 944 (1995)).
`
`In Massachusetts, “[r]easonably conspicuous notice of the
`existence of contract terms and unambiguous manifestation of
`assent to those terms by consumers are essential if electronic
`bargaining is to have integrity and credibility.” Id. (emphasis
`
` 
`
`7
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 8 of 18
`
`added) (citing Ajemian v. Yahoo! Inc., 987 N.E.2d 604, 612
`(Mass. App. Ct. 2013)).4 With that principle in mind, the
`Massachusetts Appeals Court in Ajemian has outlined a two-step
`inquiry, endorsed and applied by the First Circuit in Cullinane,
`to determine enforceability of clauses5 in online agreements.
`Id. at 62. Consequently, here I must first determine whether
`the contract terms were “reasonably communicated to the
`plaintiffs.” Ajemian, 987 N.E.2d at 612. Second, I must
`determine whether “the record shows that those terms were
`‘accepted and, if so, the manner of acceptance.’” Cullinane, 893
`F.3d at 62 (citing Ajemian, 987 N.E. 2d at 613)).
`A.
`
`Reasonable Communication to Mr. Theodore
`As in Cullinane, Uber here does not argue that Mr. Theodore
`read the Terms and Conditions containing the arbitration clause,
`rather Uber “relies solely on a claim that its online
`presentation was sufficiently conspicuous as to bind the
`
` 
`4 In its most recent discussion of the applicable principles for
`requisite notice in online contracts of adhesion, the First
`Circuit in Cullinane v. Uber Techs., Inc., 893 F.3d 53, 61-62
`(1st Cir. 2018) expressly looked to Ajemian v. Yahoo! Inc., 987
`N.E.2d 604, 611-15 (Mass. App. Ct. 2013) as a decision
`containing “trustworthy data for ascertaining [Massachusetts]
`state law” on this issue.
`5 The clause in question in Ajemian was a forum selection clause;
`however, nothing about the two-step inquiry is specific to that
`particular kind of clause. The same form of inquiry can guide
`determination of the enforceability of an arbitration clause. I
`will deploy it to do so here as the First Circuit did in
`Cullinane.
`
` 
`
`8
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 9 of 18
`
`Plaintiffs whether or not they chose to click through the
`relevant terms.” Id. In the “context of web-based contracts
`. . . clarity and conspicuousness are a function of the design
`and content of the relevant interface.” Id. (citing Meyer v.
`Uber Techs., Inc., 868 F.3d 66, 75 (2d Cir. 2017).
`Under the provisions of the Massachusetts Uniform
`Commercial Code, “conspicuous” is defined as “written, displayed
`or presented [such] that a reasonable person against which it is
`to operate ought to have noticed it.” M.G.L. c. 106 § 1-
`201(b)(10); cf. M.G.L. c. 156D § 1.40 (under the general law of
`corporations established by the Massachusetts Business
`Corporation Act, a reasonable person standard is applied to
`whether someone “should have noticed it”).
`Characteristics that should generally be considered when
`determining whether terms are sufficiently conspicuous include:
`“larger and contrasting font, the use of headings in capitals,
`or somehow setting off the term from the surrounding text by the
`use of symbols or other marks.” Cullinane, 893 F.3d at 62
`(citing M.G.L. c. 106 § 1-201(b)(10)). There are additional
`considerations “when the terms of the agreement are only
`available by following a link.” Id. Under those circumstances,
`“the court must examine the language that was used to notify
`users that the terms of their arrangement could be found by
`following the link, how prominently displayed the link was, and
`
` 
`
`9
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 10 of 18
`
`any other information that would bear on the reasonableness of
`communicating [the terms].” Id. (citing Ajemian, 987 N.E.2d at
`612).
`In Cullinane, inquiry stopped after the First Circuit
`concluded that Uber did not reasonably communicate the terms of
`their agreement with Plaintiffs. Id. at 64. As a result, the
`First Circuit determined Plaintiffs were not able to provide
`unambiguous assent and therefore were not bound by the
`arbitration clause. Id.
`The screen that a new user sees when he or she is signing
`up for the Uber account at issue here is somewhat different from
`that at issue in Cullinane. I am consequently faced with the
`question whether the difference is enough to change the outcome
`reached by the First Circuit in Cullinane.6
`
` 
`6 On January 29, 2020, Cullinane was resolved on remand when I
`approved a settlement agreement between the parties. See
`Cullinane v. Uber Technologies, Inc., No. 14-cv-14750-DPW, Dkt
`No. 130 (D. Mass. Jan. 29, 2020). The case was settled for a
`nominal $3 million amount, to be paid to Massachusetts residents
`(defined as persons who both registered for an Uber account via
`an iPhone in Massachusetts and had a Massachusetts billing
`address) who paid at least one of either the allegedly unlawful
`“Logan Massport Surcharge and Toll” and/or “East Boston Toll,”
`between October 18, 2011 and August 14, 2015 and did not receive
`a refund for those charges. The payments are to be distributed
`in one of two ways: (1) class members with active Uber accounts
`will receive their payment in the form of a credit on their Uber
`accounts (a “customer loyalty” allocation), and (2) class
`members without active Uber accounts (or who do not use their
`app credits within 365 days of receipt) will receive their
`payment in the form of a mailed check (a “cash payment”
`allocation).
`
` 
`
`10
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 11 of 18
`
`In Cullinane, a new user was not required to click the
`“Terms and Conditions” link in order to proceed to the next step
`of creating an account, even though that was the point at which
`the new user would be bound to those Terms and Conditions. The
`link to the Terms and Conditions (and the Privacy Policy) was
`located in a gray rectangular box, written in white text. Other
`terms on the page had similar features, such that the hyperlink
`was not accentuated by comparison. Id. at 63. For example,
`“‘enter promo code’ w[as] also written in bold and with a
`similarly sized font as the hyperlink . . .” Id. The text of
`the “Terms and Conditions” link was not the largest font on the
`page. Id. Finally, the text used to put potential users on
`notice “that the creation of an Uber account would bind them to
`the linked terms was even less conspicuous than the” hyperlink
`to the “Terms and Conditions” themselves. Id.
`
` 
`
`11
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 12 of 18
`
`
`
`Screenshot from Cullinane above
`
`
`
`
`
`Screenshot from Theodore above
`The only noteworthy differences between the features that
`relate to notice of the arbitration clause at issue here and
`those at issue in Cullinane are that (1) the links to the “Terms
`12
`
` 
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 13 of 18
`
`and Conditions” and “Privacy Policy” here appear in blue text
`against a white backdrop, whereas in Cullinane, those links were
`in white text against a black backdrop (as indicated by the
`wide, horizonal arrows at the bottom of the boxes shown above),
`and (2) the notification to new users that they would be bound
`by the “Terms and Conditions” (including arbitration) and
`“Privacy Policy” when they created their account here is in
`black text against a white backdrop, whereas in Cullinane, it
`was in gray text against a white backdrop (again, as indicated
`by the narrow, diagonal arrows in the boxes shown above).
`Apart from those two differences, the relevant features
`present in Cullinane, as analyzed by the First Circuit, were
`operative at the time Mr. Theodore created his account. For
`example, some of the other terms on the page were still in the
`same color as the hyperlink, including “enter promo code,” and
`the links to the “Terms and Conditions” and “Privacy Policy”
`were still not the largest text on the screen. The hyperlinks
`also continued to appear without any underlining. Finally, as
`before, the Terms and Conditions were linked at the bottom of
`the screen and did not require an affirmative acknowledgment7
`
` 
`7 For this reason, in my decision in Cullinane, I adopted Judge
`Weinstein’s shorthand phrase “sign-in-wrap” to describe the
`online agreement, through which “a user is notified of the
`existence and applicability of a site’s “terms of use” when
`proceeding through the website’s sign-in or login process,” but
`does “not require the user to click on a box showing acceptance…
`13
`
` 
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 14 of 18
`
`from the prospective user that he or she was agreeing to be
`bound by the Terms and Conditions or the Privacy Policy by
`creating an Uber account.
`In Cullinane, the First Circuit grounded its determination
`that Plaintiffs lacked sufficient notice of the agreement based
`on the characteristics of the hyperlink itself and how it
`compared to other text on the screen. The Court observed that
`hyperlinks were generally blue and underlined, and “the presence
`of other terms on the same screen with similar or larger size,
`typeface…” did not render the agreement sufficiently
`conspicuous. While the Terms and Conditions in the agreement
`now before me appear in blue, but without underlining, the other
`characteristics that gave the First Circuit pause generally were
`found on the relevant Uber screen for Mr. Theodore.
`The First Circuit has had one occasion to reflect further
`on the propositions for which Cullinane stands since it was
`decided in 2018. In Bekele v. Lyft, the court observed that
`Cullinane did not “substantially change” the applicable law and
`that the procedure for analyzing online contracts was and still
`is the Ajemian standard of “reasonably communicated and
`accepted.” 918 F. 3d 181, 187 (1st Cir. 2019). The First
`
` 
`in order to continue.” Berkson v. Gogo LLC, 97 F. Supp. 3d 359,
`399 (E.D.N.Y. 2015); see also Cullinane, 893 F.3d at 61 n. 10
`(adopting Judge Weinstein’s “four general types of online
`contracts”).
`
` 
`
`14
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 15 of 18
`
`Circuit also took the position that the importance of analyzing
`reasonable notice in context was clear before Cullinane. Id.
`In the meantime, the First Circuit’s decision in Cullinane
`has received the attention of some legal scholars. It appears
`that Cullinane has been recognized as a paradigm of judicial
`reliance on analysis of the general context in answering
`questions regarding reasonable notice to consumers in online
`contracts of adhesion; but there appears to be little
`consideration in the academic literature of Cullinane’s more
`particularized contextual requirements as a basis to satisfy
`adequate notice. See, e.g., Nancy Kim, Digital Contracts, 75
`BUS. LAW. 1683, 1692 (Winter 2019-20) (noting the First Circuit’s
`emphasis on the “design and content” of the screen in question);
`Kevin Conroy & John Shope, Look Before You Click: The
`
`Enforceability of Website and Smartphone App Terms and
`Conditions, 63 BOS. BAR. J. 23, 23-24 (Spring 2019) (observing the
`“complicated and fact-intensive” inquiry associated with ‘sign-
`in-wrap’ agreements and Cullinane’s finding of inadequate notice
`based on the interface design); Mark Budnitz, Touching, Tapping,
`and Talking: The Formation of Contracts in Cyberspace 43 NOVA L.
`REV. 235, 277 n. 414-15 (Spring 2019) (“Even if there were more
`than a few appellate-level cases, it is questionable whether
`they could provide helpful guidance for legislators. Courts
`decide issues concerning contract formation based on a detailed
`
` 
`
`15
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 16 of 18
`
`examination of the content and format of the specific screens
`presented to the consumer in the case before the court.”) The
`First Circuit’s specific directives on how courts in this
`Circuit are to address these inquiries and what specific
`circumstances should be emphasized are, in any event, binding
`upon me when addressing reasonable notice for sign-in-wrap
`agreements.
` Cullinane plainly provided both high level contextual
`analysis and micro-analysis of particular elements of that
`context. Cullinane as a whole has been characterized negatively
`by Judge Gutierrez, of the Central District of California. West
`v. Uber Techs., No. CV 18-3001 PSG (GJSx), 2018 WL 5848903, at
`*4 (C.D. Cal. Sept. 5, 2018; see also In re. Uber Techs., Data
`Security Breach Litig. Brittany Durgin v. Rasier, LLC, No. CV
`18-3169 PSG (GJSx), 2019 WL 6317770 at *4 (C.D. Cal. Aug. 19,
`2019). With respect, I find Judge Gutierrez’s view that “the
`Cullinane decision departs dramatically both from what other
`courts have found regarding Uber’s registration process, and
`from the overall legal landscape regarding assent to online
`agreements” to be overstated. This overstatement appears to
`result from a failure to distinguish between the high level
`contextual analysis and the micro-analysis of particularized
`elements of the context. Nevertheless, in Rasier, 2019 WL
`6317770 at *4, Judge Gutierrez adopted the Meyer approach, which
`
` 
`
`16
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 17 of 18
`
`was also expressly relied upon by Cullinane. Cullinane, 893
`F.3d at 62, supra at 8 (citing Meyer).
`
`In Meyer, the Second Circuit reversed and remanded the
`district court’s denial of Uber’s motion to compel arbitration,
`finding that a reasonably prudent smartphone user would
`understand the process of entering into contracts through
`smartphones apps. Id. at 77-79. The Meyer court specifically
`said that these users would recognize that “text that is
`highlighted in blue and underlined is hyperlinked to another
`webpage where additional information will be found.” Meyer, 868
`F.3d at 78. This approach essentially mirrors the First
`Circuit’s focus in Cullinane. See also, Conroy at 23 (“This
`two-part test [from Ajemian and employed by the First Circuit in
`Cullinane] is consistent with the approach taken by other courts
`in the country. E.g., Meyer…”). Indeed, the screen from Meyer
`appears to resemble the screen here closely. See generally
`Meyer, 868 F.3d at 81-82. Based on the guidance I have received
`from the First Circuit in Cullinane, I conclude the Terms and
`Conditions on the screen seen by Mr. Theodore when he created
`his Uber account were not conspicuous enough reasonably to
`communicate the existence or terms of the agreement. Therefore,
`Mr. Theodore cannot be bound by the mandatory arbitration
`provision.
`
`
` 
`
`17
`
`

`

`Case 1:18-cv-12147-DPW Document 28 Filed 03/03/20 Page 18 of 18
`
`B. Acceptance by Mr. Theodore
`As a result of the want of legally sufficient notice to Mr.
`Theodore that under First Circuit law he was agreeing to be
`bound by the hyperlinked Terms and Conditions, which contained
`the mandatory arbitration clause at issue here, he could not
`have provided his “unambiguous consent to those terms.”
`Cullinane, 893 F.3d at 64. Accordingly, Uber has not met its
`burden to justify compelling arbitration, and, under Cullinane,
`I must deny its motion seeking that relief because parties may
`not be compelled to arbitrate when they have not agreed to do
`so. See, supra, Cullinane, 893 F.3d at 60 (quoting Volt Info.
`Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489
`U.S. 468, 478 (1989)).
`
`IV. CONCLUSION
`
`For the reasons outlined above,
`I DENY Uber’s Motion [Dkt No. 20] to compel arbitration.
`
`This case will follow the ordinary course of civil litigation in
`this court. The Clerk shall set the matter for a scheduling
`conference to chart the course toward resolution of this case.
`
`
`
`
`
` 
`
`/s/ Douglas P. Woodlock_________
`DOUGLAS P. WOODLOCK
`UNITED STATES DISTRICT JUDGE
`
`18
`
`