Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 1 of 30
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`------------------------------------------x
`MARIAM DAVIT ASHVILI, et al.,
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`Plaintiffs,
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`V.
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`GRUBHUB INC., et al.,
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`Defendants.
`------------------------------------------x
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`20-cv-3000 (LAK)
`and consolidated case
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`MEMORANDUM OPINION
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`Appearances:
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`Gregory A. Frank
`Marvin L. Frank
`Asher Hawkins
`FRANKLLP
`
`Kyle W. Roche
`Edward Normand
`Stephen Lagos
`ROCHE CYRULNIK FREEDMAN LLP
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`Attorneys for Plaintiffs
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`David J. Lender
`Eric S. Hochstadt
`Luna Ngan Barrington
`WEIL, GOTSHAL & MANGES LLP
`Attorneys for Defendant Grub hub Inc.
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`Steven C. Sunshine
`Karen M. Lent
`Evan Kreiner
`SKADDEN, ARPS, SLATE, MEAGHER, & FLOM LLP
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`

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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 2 of 30
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`2
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`Derek Ludwin
`Stacey K. Grigsby
`Andrew A. Ruffino
`COVINGTON & BURLING LLP
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`Attorneys for Defendant Postmates Inc.
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`Derek Ludwin
`Stacey K. Grigsby
`Andrew A. Ruffino
`COVINGTON & BURLING LLP
`Attorneys for Defendant Uber Technologies, Inc.
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`LEWIS A. KAPLAN, District Judge.
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`This matter is before the Court on the motions of Grub hub, Inc. ("Grubhub"), Uber
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`Technologies, Inc. ("Uber" or "Uber Eats"), and Postmates Inc. ("Postmates") to compel plaintiffs
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`Mariam Davitashvili, Adam Bensimon, Philip Eliades, Jonathan Swaby, John Boisi, and Nathan
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`Obey (the "Platform Plaintiffs") to arbitrate their claims, based on arbitration provisions in
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`defendants' respective terms of use. (Dkt 72; Dkt 76) For the reasons set forth below, defendants'
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`motions are denied.
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`Facts
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`This matter arises from a putative class action involving the contractual relationships
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`between restaurants and online ordering platforms for restaurant meals. The amended complaint
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`alleges that the defendants each unlawfully has fixed prices for restaurant meals by entering into
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`restrictive agreements with restaurants that preclude those restaurants from charging lower prices off(cid:173)
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`platform. The no-price-competition clauses ("NPCCs") contained in these agreements prohibit
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`restaurants that sell through Grubhub or Uber from selling meals at lower prices either directly to
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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 3 of 30
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`3
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`consumers or through a competing platform, like Doordash. 1 Postmates requires a narrower version
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`of an NPCC, which prohibits restaurants from selling meals at lower prices directly to consumers,
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`but not through other channels.2 Plaintiffs claim that defendants thus have caused them to pay
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`artificially high prices for restaurant meals. 3 They seek damages and injunctive relief under Section
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`1 of the Sherman Act and its state analogues on behalf of themselves and three putative nationwide
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`classes. Plaintiffs seek damages for (i) their direct purchases from restaurants bound by defendants'
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`NPCCs and (ii) their purchases from such restaurants through non-defendant platforms. 4
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`On March 30, 2022, the Court denied defendants ' joint motion to dismiss these
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`claims. (Dkt 46) Approximately two months later, defendants served interrogatories on plaintiffs,
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`requesting that they "identify the Meal Order Platforms through which" they ordered "at any point
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`during the Class Period."5 In response, the Platform Plaintiffs disclosed that they each had used at
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`least one of the defendants' platforms, whereas plaintiff Malik Drewey disclosed that he never had
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`used those platforms. 6 Defendants move to compel arbitration against the Platform Plaintiffs on the
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`basis of their use of the defendants ' platforms and the arbitration clauses contained within the
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`defendants' respective "Terms of Use."
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`Dkt 28, ,r,r 55-56, 59-61. All docket citations are to No. 20-cv-3000 (LAK).
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`2
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`4
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`6
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`Id. ,r,r 57-58.
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`Id. ,r,r 1, 188-216.
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`Id. ,r,r 173-75.
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`Hochstadt Deel. Ex. B, at 4-5 .
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`Id.
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`4
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`The Arbitration Clauses in Defendants' Terms of Use
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`A.
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`Grub hub 's Terms of Use
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`Grubhub merged with Seamless North America LLC ("Seamless"), another
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`meal-delivery platform, in August 2013. 7 It is undisputed that each Platform Plaintiff opened an
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`account with either Grubhub or its predecessor in interest, Seamless, prior to the filing of this action
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`in April 2020. Grubhub asserts that its terms of use were published on its website "[b ]efore this case
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`was filed and during the pendency of the litigation."8 However, Grubhub submitted no evidence
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`demonstrating how those terms appeared or could be accessed. 9
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`Grubhub claims that it requires customers to agree to its terms of use each time a
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`customer places a pick-up or delivery order. 10 It is undisputed that the Platform Plaintiffs each have
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`placed orders on Grubhub during the pendency of this action and since Grubhub updated its terms
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`of use on December 14, 2021.
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`Grubhub argues that the Platform Plaintiffs are bound by the updated terms, which
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`govern consumers "use" of Grubhub's platform.
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`First, the Terms of Use provide:
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`"Grubhub Holdings Inc. and its subsidiaries and affiliates ('Grubhub,' 'we,' 'our,' or
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`' us ' ) own and operate certain websites, including related subdomains; our mobile,
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`Koreis Deel. ~ 4.
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`Id.~ 8.
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`See Dkt 87, at 13.
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`See Koreis Deel.~ 10.
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`9
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`IO
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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 5 of 30
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`5
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`tablet and other smart device applications; application program interfaces; in-store
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`kiosks or other online services; other tools, technology and programs (collectively,
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`the 'Platform') and all associated services (collectively, the 'Services'); in each case,
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`that reference and incorporate this Agreement. . . . This Agreement constitutes a
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`contract between you and us that governs your access and use of the Platform and
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`Services." 11
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`They also contain a provision entitled "Mutual Arbitration Provision," which states
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`that Grubhub users are required to submit "any" dispute with Grubhub to arbitration:
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`"You and Grub hub agree that all claims, disputes, or disagreements that may arise out
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`of the interpretation or performance of this Agreement or payments by or to Grubhub,
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`or that in any way relate to your use of the Platform, the Materials, the Services,
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`and/or other content on the Platform, your relationship with Grubhub, or any other
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`dispute with Grubhub,
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`(whether based
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`in contract,
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`tort, statute,
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`fraud,
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`misrepresentation, or any other legal theory) (each, a 'Dispute') shall be submitted
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`exclusively to binding arbitration. Dispute shall have the broadest possible meaning.
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`This includes claims that arose, were asserted, or involve facts occurring before the
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`existence of this or any prior Agreement as well as claims that may arise after the
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`termination of this Agreement. This Mutual Arbitration Agreement is intended to be
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`broadly interpreted." 12 The Grubhub arbitration clause states also that "issues related
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`II
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`12
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`Kore is Deel. Ex. D, at 2 ( emphasis added).
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`Id. at 21 ( emphasis added).
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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 6 of 30
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`to the scope, validity, and enforceability ofthis Arbitration Agreement are for a court
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`to decide." 13
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`Part III of the "Dispute Resolution" section is entitled "Class Action and Collective
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`6
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`Relief Waiver" and provides in relevant part:
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`"You acknowledge and agree that, to the maximum extent allowed by law, except as
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`set out in Section VII below, there shall be no right or authority for any dispute to
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`be arbitrated or litigated on a class, joint, collective or consolidated basis or in a
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`purported representative capacity on behalf of the general public, or as a private
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`attorney general or for public injunctive relief." 14
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`B.
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`Uber 's Terms of Use
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`The Platform Plaintiffs each created Uber accounts between 2014 and 2018. 15 Uber
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`claims that, in the process of creating their accounts, the Platform Plaintiffs each agreed to Uber' s
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`terms of use in effect at that time.
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`Uber updated its terms of use on December 16, 2021 . 16 Uber claims that it notified
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`users of that update via "an in-app blocking pop-up screen that appeared when the user opened an
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`13
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`14
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`15
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`16
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`Id.
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`Id. at 22 [ emphasis added].
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`Sullivan Deel. ,r 25 .
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`Id. ,r 35 .
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`7
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`Uber App." 17 Uber asserts that, "[t]o proceed past the pop-up screen, the user was required to
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`affirmatively check a box labeled 'By checking the box, I have reviewed and agreed to the Terms of
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`Use and acknowledged the Privacy Notice' and click 'Confirm. "' 18 Each of the Platform Plaintiffs,
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`except for Adam Bensimon, provided "check-box consent" via this pop-up screen, and thus are
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`bound by Uber's December 2021 terms of use. 19 As to plaintiffBensimon, Uber asserts that he has
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`used his "Uber account as recently as November 18, 2021," and that he therefore is bound by Uber' s
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`June 2021 terms of use. 20
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`For purposes ofUber's motion, Uber and the Platform Plaintiffs treat the July 2021
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`and December 2021 terms of use as substantially identical. 21 In both versions, the terms of use
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`govern consumers' "access or use" of Uber's platform as follows:
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`"Uber provides a personalized multipurpose digital marketplace platform ('Uber
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`Marketplace Platform') that enables you to conveniently find, request, or receive
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`transportation, logistics and/or delivery services from third-party providers that meet
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`your needs and interests. These Terms of Use ('Terms') govern your access or use,
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`17
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`18
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`19
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`20
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`21
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`Id. ,r 39.
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`Id.
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`Id. ,r 40.
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`With the exception of plaintiff Bensimon, the Platform Plaintiffs do not dispute that they
`assented to Uber's December 2021 terms of use. See Dkt 87, at 28-29.
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`Sullivan Deel. ,r 41.
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`See Dkt 87, at 16.
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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 8 of 30
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`8
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`from within the United States and its territories and possessions, of the Uber
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`Marketplace Platform and any related content or services ( collectively, the' Services,'
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`as more fully defined below in Section 3) made available in the United States and its
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`territories and possessions by Uber Technologies, Inc. and its subsidiaries,
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`representatives, affiliates, officers and directors (collectively, ' Uber')."22
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`Section 2(a)(l) of Uber's terms of use contains an arbitration provision titled
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`"Covered Disputes," which provides:
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`"Except as expressly provided below in Section 2(b ), you and Uber agree that any
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`dispute, claim, or controversy in any way arising out of or relating to (i) these Terms
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`and prior versions of these Terms, or the existence, breach, termination, enforcement,
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`interpretation, scope, waiver, or validity thereof; (ii) your access to or use of the
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`Services at any time; (iii) incidents or accidents resulting in personal injury to you or
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`anyone else that you allege occurred in connection with your use of the Services
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`(including, but not limited to, your use of the Uber Marketplace Platform or the driver
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`version of the Uber App), regardless whether the dispute, claim, or controversy
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`occurred or accrued before or after the date you agreed to the Terms and regardless
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`whether you allege that the personal injury was experienced by you or anyone else;
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`and (iv)your relationship with Uber, will be settled by binding individual arbitration
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`22
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`Sullivan Deel. Ex. F, at 55 (emphasis added).
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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 9 of 30
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`between you and Uber, and not in a court of law. This Arbitration Agreement
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`survives after your relationship with Uber ends."23
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`9
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`Section 2( a)(2), titled "Class Action Waiver," expands the scope of Uber' s arbitration
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`rights from those expressed in Section 2( a)( 1 ). It provides in pertinent part: "You acknowledge and
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`agree that any and all disputes, claims, or controversies between the parties shall be resolved on!ly
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`in individual arbitration."24 That section provides also:
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`"The parties expressly waive the right to have any dispute, claim, or controversy
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`brought, heard, administered, resolved, or arbitrated as a class, collective,
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`coordinated, consolidated, and/or representative action, and neither an arbitrator nor
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`an arbitration provider shall have any authority to hear, arbitrate, or administer any
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`class, collective, coordinated, consolidated, and/or representative action, or to award
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`relief to anyone but the individual in arbitration. The parties also expressly waive the
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`right to seek, recover, or obtain any non-individual relief .... The parties further
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`agree that if for any reason a claim does not proceed in arbitration, this Class Action
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`Waiver shall remain in effect, and a court may not preside over any action joining,
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`coordinating, or consolidating the claims of multiple individuals against Uber in a
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`single proceeding, except that this Class Action Waiver shall not prevent you or Uber
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`23
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`24
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`Id. at 56-57 (emphasis added).
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`Id. at 57 (emphasis added).
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`

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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 10 of 30
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`from participating in a classwide, collective, and/or representative settlement of
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`10
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`claims. "25
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`Section 2(a)(4) ofUber's terms of use is entitled "Delegation Clause" and provides:
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`"Only an arbitrator, and not any federal, state, or local court or agency, shall have
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`exclusive authority to resolve any dispute arising out of or relating to the
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`interpretation, applicability, enforceability, or formation of this Arbitration
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`Agreement, including without limitation any claim that all or any part of this
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`Arbitration Agreement is void or voidable. An arbitrator shall also have exclusive
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`authority to resolve all threshold arbitrability issues, including issues relating to
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`whether the Terms are applicable, unconscionable, or illusory and any defense to
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`arbitration, including without limitation waiver, delay, laches, or estoppel. However,
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`only a court of competent jurisdiction, and not an arbitrator, shall have the exclusive
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`authority to resolve any and all disputes arising out of or relating to the Class Action
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`Waiver and Mass Action Waiver, including but not limited to, any claim that all or
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`part of the Class Action Waiver and/or Mass Action Waiver is unenforceable,
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`unconscionable, illegal, void, or voidable .... "26
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`25
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`26
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`Id. (emphasis added).
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`Id. ( emphasis added).
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`11
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`C.
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`Postmates ' Terms of Use
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`Between 2015 and 2018, plaintiffs Boisi, Davitashvili, Obey, and Swaby created user
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`accounts with Postmates.27 Postmates was acquired by and became a wholly owned subsidiary of
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`Uber on December 1, 2020. 28
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`Uber asserts that Postmates emailed users between March 17, 2021 and mid-April
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`2021 informing them that "the Postmates App had been updated, and that their accounts would be
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`linked with Uber."29 This email included a blue hyperlink to Uber' s terms of use and informed
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`Postmates users that they would be subject to an updated arbitration agreement. 30 Plaintiffs Boisi,
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`Davitashvili, Obey, and Swaby thereafter accepted Uber's December 2021 terms of use, which
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`defined Uber to include "its subsidiaries," including Postmates. 3 1 Thus, Uber argues that those
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`plaintiffs agreed to arbitrate "any disputes they may have" with Postmates on an individual, non-class
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`basis through binding arbitration. 32
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`27
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`28
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`29
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`30
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`31
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`32
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`See Dkt 87, at 15 (citing Sullivan Deel. ,i,i 7, 9).
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`See Dkt 90, at 7 (citing Sullivan Deel. ,i 9; id. Exs. A and B.
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`Uber claims that these plaintiffs were required to accept Postmates ' then-operative
`terms of use, which included an arbitration clause, in order to create a Postmates account.
`See Dkt 77, at 1 n. l. Use of the term "Postmates" for events prior to December 1, 2020
`herein refers to the independent corporation formerly known as Postmates Inc.
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`Sullivan Deel. ,i 21.
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`See id. ,i,i 17-23.
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`See Dkt 90, at 7 ( citing Sullivan Deel. Ex. D, at 3-4, 6-7).
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`See Dkt 77, at 5.
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`

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`- - - -------------------,--------,
`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 12 of 30
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`Prior to its acquisition by Uber, Postmates had a terms of service agreement that
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`included an arbitration clause, class action waiver, and delegation clause. 33 Postmates' December
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`2019 terms of service provided that issues "relating to [] scope, enforceability, and arbitrability" were
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`delegated to the arbitrator. 34
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`12
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`Legal Standard
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`Discussion
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`Section 2 of the FAA provides, in relevant part, as follows :
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`"A written provision in ... a contract evidencing a transaction involving commerce
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`to settle by arbitration a controversy thereafter arising out of such contract or
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`transaction . .. shall be valid, irrevocable, and enforceable, save upon such grounds
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`as exist at law or in equity for the revocation of any contract." 35
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`Under Section 4 of the Act, a party to "a written agreement for arbitration" may
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`petition a district court "for an order directing that such arbitration proceed in the manner provided
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`33
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`34
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`35
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`See Sullivan Deel. ,r,r 15-16; id. Ex. B, at 63 , 86-91.
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`Id. Ex. B, at 87-88.
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`9 U.S.C. § 2.
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`The Supreme Court has held that express class action waivers also are valid and enforceable.
`See DirecTV, Inc. v. Imburgia, 577 U.S. 47, 55, 58-59 (2015) (enforcing express class action
`waiver upon holding that the FAA preempted California state law rendering class-arbitration
`waivers unenforceable); Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 233 (2013)
`(enforcing express class action waiver after finding that " [n]o contrary congressional
`command" overrode the overarching principle that "arbitration is a matter of contract").
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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 13 of 30
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`13
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`for in such agreement."36 To decide whether the parties agreed to arbitrate, a court must apply
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`"ordinary state-law principles that govern the formation of contracts."37 Significantly, the FAA was
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`intended to make arbitration agreements "as enforceable as other contracts, but not more so. " 38 Thus,
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`"the FAA does not require parties to arbitrate when they have not agreed to do so. " 39 Nor does it
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`require arbitration when, under generally applicable principles of state law, the agreement would be
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`unenforceable. 40
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`"In deciding a motion to compel, courts apply a 'standard similar to that applicable
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`for a motion for summary judgment'" and "draw all reasonable inferences in favor of the non-moving
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`party."41 The movant "bears an initial burden of demonstrating that an agreement to arbitrate was
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`made. "42 If the moving party fails to make an adequate showing, the motion to compel arbitration
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`36
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`37
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`38
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`39
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`40
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`41
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`42
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`9 u.s.c. § 4.
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`First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,944 (1995).
`
`Volt Info. Scis., Inc. v. Bd. ofTrs. of Leland Stanford Junior Univ., 489U.S. 468,478 (1989)
`(quoting Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395,404 n.12 (1967)).
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`Id. (citing Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213,219 (1985)).
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`See, e.g., Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987); Mitsubishi Motors Corp. v. Soler
`Chrysler-Plymouth, Inc., 473 U.S. 614, 627 (1985); see also Doctor 's Assocs. Inc. v.
`Casarotto, 517 U.S. 681,687 (1996).
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`Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016) (quoting Bensadoun v.
`Jobe-Rial, 316 F.3d 171, 175 (2d Cir. 2003)).
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`Hines v. Overstock.com, Inc., 380 F. App'x 22, 24 (2d Cir. 2010).
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`14
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`must be denied. 43 If, on the other hand, the moving party satisfies this burden "by a showing of
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`evidentiary facts," 44 the burden shifts to the party "seeking to avoid arbitration" to "show the
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`agreement to be inapplicable or invalid."45
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`Once a court finds that the movant has satisfied its initial burden, "the question of
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`whether the particular dispute [at issue] is subject to an arbitration agreement 'is typically an issue
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`for judicial determination. "'46 If, however, the agreement contains a provision that "clearly and
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`unmistakably" delegates the threshold issue of arbitrability to the arbitrator, 47 such a delegation must
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`be enforced "even if the court thinks that the [movant's] arbitrability claim is wholly groundless."48
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`That is, unless a non-moving party challenges the validity of the delegation clause itself, in which
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`43
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`44
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`45
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`46
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`47
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`48
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`See Marcus v. Collins, No. 16-cv-422l(GBD)(BCM), 2016 WL 8201629, at *7 (S.D.N.Y.
`Dec. 30, 2016).
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`Oppenheimer & Co., Inc. v. Neidhardt, 56 F.3d 352,358 (2d Cir. 1995).
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`Sajdlowska v. Guardian Serv. Indus., Inc., 16-cv-3947(PAE), 2016 WL 7015755, at *4
`(S.D.N.Y. Dec. 1, 2016) (citing Harrington v. At!. Sounding Co., Inc., 602 F.3d 113, 124 (2d
`Cir. 2010)).
`
`DDKHotels, LLCv. Williams-Sonoma, Inc., 6F.4th 308,317 (2d Cir. 2021) (quoting Metro.
`Life Ins. Co. v. Bucsek, 919 F.3d 184, 191 (2d Cir. 2019)).
`
`See All. Bernstein Inv. Rsch. & Mgmt., Inc. v. Schaffran, 445 F.3d 121, 125 (2d Cir. 2006)
`(quoting AT & T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643,649 (1986)).
`
`See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 526 (2019).
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`15
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`case "the federal court must consider the challenge before ordering compliance with that [ delegation
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`clause] under § 4 [ of the FAA]. "49
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`If a court reaches the arbitrability issue, the Second Circuit instructs courts to
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`"undertake a three-part inquiry" when evaluating a motion to compel arbitration.50
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`"First,
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`recognizing there is some range in the breadth of arbitration clauses, a court should classify the
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`particular clause as either broad or narrow."51 The Circuit has described a "clause submitting to
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`arbitration ' any claim or controversy arising out of or relating to the agreement"' as the "paradigm
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`of a broad [arbitration] clause. "52 "Next, if reviewing a narrow clause, the court must determine
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`whether the dispute is over an issue that is on its face within the purview of the clause, or over a
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`collateral issue that is somehow connected to the main agreement that contains the arbitration
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`clause. " 53 In general, "[ w ]here the arbitration clause is narrow, a collateral matter will ... be ruled
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`beyond its purview."54 By contrast, "[ w]here the arbitration clause is broad, there arises a
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`presumption of arbitrability and arbitration of even a collateral matter will be ordered if the claim
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`49
`
`50
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`51
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`52
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`53
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`54
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`Gingras v. Think Fin., Inc., 922 F.3d 112, 126 (2d Cir. 2019) (quoting Rent-A-Center, W ,
`Inc. v. Jackson, 561 U.S. 63 , 71 (2019)).
`
`Louis Dreyfus Negoce S. A. v. Blystad Shipping& Trading Inc. , 252 F.3d 218,224 (2d Cir.
`2001).
`
`Id.
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`Hatemi v. M & T Bank, 633 F. App' x 47, 49 (2d Cir. 2016) (summary order) (quoting
`Collins &Aikman Prods. Co. v. Bldg. Sys. , Inc., 58 F.3d 16, 20 (2d Cir. 1995)).
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`Louis Dreyfus Negoce S.A., 252 F.3d at 224 (internal quotation marks omitted).
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`Id.
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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 16 of 30
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`alleged implicates issues of contract construction or the parties' rights and obligations under it."55
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`"When parties use expansive language in drafting an arbitration clause," the Circuit has explained,
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`"presumably they intend all issues that 'touch matters' within the main agreement to be arbitrated. "56
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`16
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`Uber and Postmates Satisfied Their Initial Burden as to All Platform Plaintiffs Except Bensimon
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`The Platform Plaintiffs claim that Uber has failed in its initial burden of
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`"demonstrating that an agreement to arbitrate was made" as to plaintiffBensimon. 57 Moreover, they
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`claim that defendants Postmates and Grubhub have failed to establish that any plaintiff assented to
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`their terms of use. Plaintiffs are correct that Uber has not satisfied its initial burden as to plaintiff
`
`Bensimon and that Grubhub has failed as to all plaintiffs. However, Uber has satisfied its initial
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`burden that all Platform Plaintiffs, with the exception of Bensimon, agreed to an arbitration clause
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`covering certain claims against Postmates.
`
`A.
`
`All Platform Plaintiffs Except Bensimon Assented to Uber 's December 2021
`Arbitration Clause
`
`With respect to Uber's December 2021 terms of use, Uber has set forth evidence -
`
`and plaintiffs do not dispute-that plaintiffs Boisi, Davitashvili, Eliades, Obey, and Swaby expressly
`
`55
`
`56
`
`57
`
`Id. (internal quotation marks omitted).
`
`Id. at 225 (internal quotation marks omitted).
`
`See Hines, Inc., 380 F. App'x at 24.
`
`Plaintiffs Boisi, Davitashvili, Eliades, Obey, and Swaby do not dispute that they manifested
`assent to Uber's December 2021 terms of use. See Dkt 87, at 28-29.
`
`

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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 17 of 30
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`17
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`manifested assent to these terms through clickwrap agreements. 58 Uber notified users of those
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`updated terms through an in-app blocking pop-up screen that appeared when a user opened an Uber
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`app following the December 2021 update. 59 The pop-up screen had a header that stated, "We 've
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`updated our terms." Below that, in bigger text, it stated, "We encourage you to read our updated
`
`Terms in full. "60 The pop-up screen provided a hyperlink to Uber' s terms of use. 6 1 The words
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`"Terms of Use" were displayed in bright blue text that contrasted with the other font colors,
`
`indicating they were hyperlinks. If a user clicked the hyperlink, the terms of use were displayed. 62
`
`To proceed past the pop-up screen, users were required to check affirmatively a box labeled, "By
`
`checking the box, I have reviewed and agreed to the Terms of Use and acknowledge the Privacy
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`Notice" and subsequently were required to click a button labeled "Confirm."63 It is undisputed that
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`plaintiffs Boisi, Davitashvili, Eliades, Obey, and Swaby clicked "Confirm" on this pop-up screen,
`
`58
`
`59
`
`60
`
`61
`
`62
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`63
`
`See Dkt 77, at 9-10; Dkt 87, at 28-29.
`
`It is undisputed that plaintiff Bensimon 's most recent use of the Uber platform was on
`November 18, 2021 and the December 2021 terms of use do not apply to him.
`
`Sullivan Decl. ~ 39; see id. Ex. G.
`
`Id.
`
`Id.
`
`Id.
`
`Id.
`
`

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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 18 of 30
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`18
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`thereby manifesting assent to Uber' s terms of use, which contained an arbitration clause, delegation
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`clause, and class action waiver. 64
`
`The arbitration clause in Uber' s December 2021 terms of use covers certain disputes
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`with Postmates also. Those terms require "Uber" users "to resolve any claim that [they] may have
`
`against Uber on an individual basis in arbitration as set forth in the Arbitration Agreement."65 The
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`December 2021 terms of use expressly define "Uber" to include "its subsidiaries."66 Postmates has
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`been a wholly owned subsidiary of Uber since December 1, 2020. Accordingly, Postmates has
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`satisfied its initial burden of "demonstrating that an agreement to arbitrate was made" between
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`Postmates and plaintiffs Boisi, Davitashvili, Eliades, Obey, and Swaby.67
`
`In the alternative, Uber argues that all of the Platform Plaintiffs, including plaintiff
`
`Bensimon, agreed to arbitrate disputes with Uber or Postmates pursuant to prior versions ofUber' s
`
`terms of use or Postmates' pre-acquisition terms of use. 68 With respect to all of these alleged
`
`64
`
`65
`
`66
`
`67
`
`68
`
`See Hines, 380 F. App'x at 25 (" [I]n the context of agreements made over the internet, New
`York courts find that binding contracts are made when the user takes some action
`demonstrating that they have at least constructive knowledge of the terms of the agreement,
`from which knowledge a court can infer acceptance.").
`
`Dkt 77, at 10.
`
`Sullivan Deel. Ex. F, at 55 .
`
`The December 2021 agreement "expressly supersede[ d] prior agreements or arrangements
`regarding the use of Services" by users of Uber and its subsidiaries, including both Uber
`Eats and Postmates users. See Sullivan Deel. ,r,r 19, 23 , 36; id. Ex. F, at 36, 55.
`
`See Hines, 380 F. App'x at 24.
`
`See Dkt 90, at 7-8.
`
`

`

`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 19 of 30
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`19
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`arbitration agreements, Uber has not satisfied its burden of demonstrating "by a showing of
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`evidentiary facts" that an agreement to arbitrate was made between Uber or Postmates and the
`
`Platform Plaintiffs.69
`
`Questions concerning whether the Platform Plaintiffs entered into valid arbitration
`
`agreements under the various contracts at issue are governed by either New York or California law
`
`depending on the particular contract and plaintiff at issue. For example, Uber' s July 2021 terms of
`
`use, which were in effect when Bensimon last used his Uber account, specified that they would be
`
`"governed by and construed in accordance with the laws of the State of California." 70 Uber' s
`
`December 2021 terms of use, on the other hand, include a general choice oflaw provision stating that
`
`the terms shall be construed in accordance with "the laws of the state in which your dispute arises. " 71
`
`In either event, the Second Circuit has found that New York and California apply "substantially
`
`similar rules for determining whether the parties have mutually assented to a contract term."72
`
`Except with respect to its December 2021 terms of use, Uber has not established that
`
`any plaintiff expressly manifested assent to any arbitration agreement with Uber or Postmates. 73
`
`Moreover, Uber has failed to establish that the Platform Plaintiffs were on "reasonable notice" of any
`
`69
`
`70
`
`71
`
`72
`
`73
`
`Oppenheimer, 56 F.3d at 358.
`
`Sullivan Deel. 1 34.
`
`Id. 138.
`
`Meyer v. Uber Techs. , Inc., 868 F.3d 66, 73-74 (2d Cir. 2017) (citation and internal
`quotation marks omitted) (applying California law).
`
`See Binder v. Aetna Life Ins. Co., 75 Cal. App. 4th 832, 850 (1999) (assent "may be
`manifested by written or spoken words, or by conduct").
`
`

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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 20 of 30
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`20
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`such arbitration agreement. 74 Uber has not submitted any evidence to demonstrate that Uber or
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`Postmates' website or app would have put a reasonable person in the Platform Plaintiffs' position
`
`on notice of the existence of any of the alleged arbitration agreements. For example, Uber has failed
`
`to provide sufficient information about what its app or web page looked like when the Platform
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`Plaintiffs initially signed up or at any other relevant time prior to December 2021. Without such
`
`information, it is impossible for the Court to conclude that the Platform Plaintiffs were on
`
`constructive notice ofany arbitration agreement other than the December 2021 terms ofuse. 75 Thus,
`
`with the exception of the December 2021 terms, Uber has failed in its initial burden of
`
`"demonstrating that an agreement to arbitrate was made" between Uber or Postmates and the
`
`Platform Plaintiffs. 76
`
`74
`
`75
`
`76
`
`See Nguyen v. Barnes &Noble Inc., 763 F.3d 1171, 1173-79 (9th Cir. 2014) (assent requires
`only "reasonable notice" of the terms of the agreement for electronic contracts).
`
`See Rui Chen v. Premier Fin. All. , Inc., No. 18-cv-3771(YGR), 2019 WL 280944, at *3
`(N.D. Cal. Jan. 22, 2019) (denying motion to compel, where defendants did not offer
`"evidence explaining the design and content of the webpage or how the AMA appeared on
`the PF A website"); In re Stub hub Refund Litig., No. 20-md-02951 (HSG), 2021 WL
`544 7006, at *7-8 (N.D. Cal. Nov. 22, 2021) ("Because the Court does not know what the
`sign-up screen these eight Plaintiffs saw when they registered, the Court cannot adequately
`assess whether they received constructive notice of the User Agreement when they signed
`up with Stubhub."); Maree v. Deutsche Lufthansa AG, No. 20-cv-885(MWF), 2020 WL
`6018806, at *3 (C.D. Cal. Oct. 7, 2020) ("The Court agrees with Plaintiff that it would be
`improper to rule on the existence of an arbitration agreement without first determining, as
`a factual matter, what the website looked like on the relevant date.").
`
`See Hines, 380 F. App'x at 24.
`
`

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`Case 1:20-cv-05134-LAK Document 23 Filed 03/16/23 Page 21 of 30
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`21
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`B.
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`Grubhub Has Not Established that Any Agreement to Arbitrate Was Made
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`Grubhub "bears [the] initial burden" of establishing that the Platform Plaintiffs made
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`an agreement to arbitrate claims against the company.77 Grubhub has failed to satisfy its burden as