Case 1:21-cv-04995-JMF Document 79 Filed 03/01/22 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`MICHELI & SHEL, LLC,
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` Plaintiff,
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`GRUBHUB INC. et al.,
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` Defendants.
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`21-CV-4995 (JMF)
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`OPINION AND ORDER
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`JESSE M. FURMAN, United States District Judge:
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`In this putative class action, Plaintiff Micheli & Shel, LLC, a bakery located in New York
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`City, sues Grubhub, Inc., Postmates LLC, Uber Eats, and DoorDash Inc., four national food
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`delivery services, alleging violations of a New York City local law enacted during the COVID-
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`19 pandemic that limits the fees that food delivery services can charge restaurants for their
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`services.1 The question presented here is not whether Plaintiff’s claims have merit, but whether
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`they can even be brought in this forum. Defendants argue that Plaintiff agreed to arbitrate its
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`claims on an individual basis and, thus, move to compel arbitration and to stay this litigation.
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`The Court agrees with respect to Plaintiffs’ claims against Grubhub, Uber Eats, and DoorDash
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`because, in each instance, Plaintiff did, in fact, agree to arbitration. In Postmates’s case,
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`however, the Court concludes that Plaintiff did not actually agree to arbitrate its claims.
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`1
`Although the Complaint names as Defendants Grubhub Inc.; Grubhub Inc. d/b/a
`Seamless; and Seamless North America, LLC., see ECF No. 1, Grubhub represents, and Plaintiff
`does not dispute, that it acquired Seamless on December 31, 2014, and that Seamless North
`America, LLC, no longer exists as a separate corporate entity, see ECF No. 53 (“Wilson Decl.”),
`¶ 11. Accordingly, the Court refers to all three Defendants here as Grubhub.
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`Case 1:21-cv-04995-JMF Document 79 Filed 03/01/22 Page 2 of 15
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`Accordingly, and for the reasons that follow, the motions of Grubhub, Uber Eats, and DoorDash
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`to compel arbitration and stay are GRANTED, but Postmates’s motions are DENIED.
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`BACKGROUND
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`The relevant facts — taken from the Complaint and sworn declarations submitted in
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`connection with Defendants’ motions — are undisputed. Most relevant to Defendants’ motions
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`are the terms of their respective contracts with Plaintiff. The Court will summarize each in turn.
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`A. Plaintiff’s Contract with Grubhub
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`On October 30, 2019, Plaintiff signed up to work with Grubhub. ECF No. 53 (“Wilson
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`Decl.”), ¶ 5. Adir Michaeli, as “owner,” completed the sign-up process, which included signing
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`the Grubhub Restaurants and Services Form. Id. ¶¶ 6-7. In doing so, Michaeli checked a box
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`affirming the following:
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`I certify that I am the duly authorized representative of Restaurant, and that I have
`carefully reviewed and agree to the Grubhub Restaurant Terms set forth at
`https://get.grubhub.com/legal/restaurant-terms (“Terms”), which are incorporated
`herein and made a part of this Agreement. [Grubhub] may modify the Terms at
`any time at its sole discretion, provided that such modifications will be applied
`only prospectively. You agree that [Grubhub] has the right to notify you of
`updated Terms by posting them on the Systems. You should review the Terms
`before using the Services. The Terms contain a mandatory arbitration
`provision that affects your legal rights. Please read it.
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`ECF No. 53-1 (“Grubhub Form”), at 2 (emphasis in original). The first paragraph of the
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`Grubhub Terms, available at the hyperlink in the Form, emphasizes in bold, all-caps text that
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`“THE SECTION ENTITLED ‘DISPUTE RESOLUTION’ HAS A MANDATORY
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`ARBITRATION PROVISION. IT AFFECTS RESTAURANT’S LEGAL RIGHTS.
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`PLEASE READ IT.” ECF No. 53-2 (“Grubhub Terms”), at 1 (emphasis in original).
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`In turn, the arbitration provision provides:
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`Restaurant and [Grubhub] agree that all claims or disputes arising out of the
`Agreement will be decided by an arbitrator through arbitration and not by a judge
`or jury (“Arbitration Agreement”). This Arbitration Agreement is governed by
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`2
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`Case 1:21-cv-04995-JMF Document 79 Filed 03/01/22 Page 3 of 15
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`the Federal Arbitration Act (“FAA”) and evidences a transaction involving
`commerce. This arbitration will be conducted before a single arbitrator under the
`Commercial Arbitration Rules of the American Arbitration Association (“AAA”)
`. . .
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`Grubhub Terms 5. The arbitration provision also includes the following class action waiver:
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`The parties agree to bring any claim or dispute in arbitration on an individual
`basis only, and not as a class or collective action, and there will be no right or
`authority for any claim or dispute to be brought, heard, or arbitrated as a class or
`collective action (“Class Action Waiver”). Regardless of anything herein and/or
`the applicable AAA Rules, the interpretation, applicability or enforceability of the
`Class Action Waiver may only be determined by a court and not an arbitrator.
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`Id. The terms were last updated October 15, 2018. Wilson Decl. ¶ 9.
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`B. Plaintiff’s Contract with Uber Eats
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`Michaeli signed Plaintiff up with Uber Eats on November 13, 2019. ECF No. 66
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`(“Pelham Decl.”), ¶ 5. Uber Eats is operated by Portier, LLC, a subsidiary of Uber
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`Technologies. Id. ¶ 3. When Michaeli registered Plaintiff with Uber Eats, he signed the Uber
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`Eats Order Form. ECF No. 66-1 (“Uber Eats Form”). The first section, “General Terms,” stated
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`that the agreement was “subject to the terms and conditions, including an arbitration provision,
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`currently available at [link], as may be updated from time to time.” Id. Clicking on the link
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`brought up the “Uber Eats U.S. Merchant Terms and Conditions,” ECF No. 66-2 (“Uber Eats
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`Terms”), which included the following arbitration provision:
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`Any dispute, whether contractual or otherwise, arising out of or in connection
`with this Agreement or these dispute resolution procedures, including any
`question regarding its existence, performance, validity, or termination, will be
`referred to and finally resolved by arbitration administered by JAMS in
`accordance with its Comprehensive Arbitration Rules and Procedures (the “JAMS
`Rules”), which are deemed to be incorporated by reference into this clause. The
`parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local
`court or agency, shall have exclusive authority to resolve any disputes relating to
`the interpretation, applicability, enforceability or formation of this Agreement,
`including any claim that all or any part of this Agreement is void or voidable.
`The Arbitrator shall also be responsible for determining all threshold arbitrability
`issues, including issues relating to whether this Agreement is unconscionable or
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`3
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`Case 1:21-cv-04995-JMF Document 79 Filed 03/01/22 Page 4 of 15
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`illusory and any defense to arbitration, including waiver, delay, laches, or
`estoppel.
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`Uber Eats Terms § 17.1. The Uber Eats Terms also included the following class action waiver:
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`“Neither party may bring any class, collective, or representative action against the other party,
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`and will preclude a party from participating in or recovering relief under any current or future
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`class, collective, consolidated, or representative action brought against the other party by
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`someone else.” Uber Eats Terms § 17.1(vii).
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`C. Plaintiff’s Contract with DoorDash
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`Michaeli signed up to create an account for Plaintiff with DoorDash on January 21, 2020.
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`ECF No. 60 (“Sommers Decl.”), at ¶ 6. To do so, he completed the DoorDash Sign-Up Sheet,
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`ECF No. 60-1 (“DoorDash Form”), and signed the DoorDash Merchant Terms of Use, ECF No.
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`60-2 (“DoorDash Terms”).2 The first section of the Merchant Terms of Use calls attention to
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`Section 17, governing arbitration of claims, as follows:
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`SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT
`GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH
`OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY
`CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE
`DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 17 SETS
`FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED
`EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED
`TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF
`THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED
`TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN
`INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
`CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU
`ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW
`AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION
`AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN
`PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE
`SECTION 17 FOR MORE INFORMATION REGARDING THIS
`ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS
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`2
`References to page numbers in the DoorDash Terms are to the page numbers
`automatically generated by the Court’s Electronic Case Filing (“ECF”) system.
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`4
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`Case 1:21-cv-04995-JMF Document 79 Filed 03/01/22 Page 5 of 15
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`ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE
`ARBITRATION AGREEMENT.
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`DoorDash Terms 4. Section 17, in turn, states that, subject to two exceptions not relevant here,
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`“[a]ny dispute, controversy or claim arising out of, relating to or in connection with this contract,
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`including the breach, termination or validity thereof, shall be finally resolved by binding
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`arbitration, rather than in court.” Id. § 17.1. It further specifies that arbitration will be “governed
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`by the Federal Arbitration Act in all respects,” id. § 17.2, conducted by JAMS, id., and that
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`[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 Arbitration Agreement,
`including, but not limited to any claims that all or any part of this Arbitration
`Agreement is void or voidable.
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`Id. § 17.3. The agreement also includes a class action waiver, id. § 17.5, and a provision that
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`allows a merchant to “opt out of this Arbitration Agreement.” id. § 17.6. The latter provision
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`further states that “[i]f you do [opt out], neither you nor the Company can force the other to
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`arbitrate as a result of this Agreement. To opt out, you must notify the Company in writing no
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`later than 30 days after first becoming subject to this Arbitration Agreement.” Id. DoorDash
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`represents, and Plaintiff does not dispute, that Plaintiff did not exercise its right to opt out of the
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`arbitration provision. Sommers Decl. ¶ 11.
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`
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`DoorDash updated its Merchant Terms of Use on May 12, 2020, id. ¶ 12, see ECF No.
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`60-4, on June 17, 2020, Sommers Decl. ¶ 14, see ECF No. 60-5, on December 2, 2020, Sommers
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`Decl. ¶ 17, see ECF No. 60-6, on February 1, 2021, Sommers Decl. ¶ 20, see ECF No. 60-7, and
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`on June 1, 2021, Sommers Decl. ¶ 22, see ECF No. 60-8. Each time, DoorDash sent an email to
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`Plaintiff advising it of the changes. Sommers Decl. ¶ 16. DoorDash submitted two such emails,
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`which each appear to have a clear header or subject line — “Updated Online Merchant Terms”
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`and “We’ve Updated our Online Merchant Terms” — and include a link to the revised terms
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`5
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`Case 1:21-cv-04995-JMF Document 79 Filed 03/01/22 Page 6 of 15
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`prominently in the first line of the email. Id. ¶¶ 18, 23. Some of the updates modified the
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`arbitration agreement, but the core provisions relevant to this case, including the delegation of
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`the question of arbitrability to the arbitrator and the class action waiver, remained unchanged.
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`D. Plaintiff’s Contract with Postmates
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`Finally, on May 12, 2020, Michaeli signed Plaintiff up to work with Postmates. ECF No.
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`65 (“Lopez Decl.”), ¶ 6. Notably, the contract that Plaintiff signed at that time — the Postmates
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`Merchant Agreement, ECF No. 65-1 (“Postmates Terms”)3 — did not include an arbitration
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`agreement, see ECF No. 75 (“Pl.’s Opp’n”), at 11. In addition, the Postmates Merchant
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`Agreement specified that “[t]his Agreement may be amended only by a written document
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`executed by both Parties.” Postmates Terms 6.
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`On November 5, 2022, Postmates sent all merchants with which it contracted, including
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`Plaintiff, an email stating that it was “updating [the] Seller Agreement and moving it online.”
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`ECF No. 65-2 (“Postmates Modification Email”). The email noted that “[a] mutual arbitration
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`provision has been added” as well as a “[m]odification provision allowing Postmates to modify
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`the terms.” Id. One of the first paragraphs of the new terms, ECF No. 65-3 (“Postmates
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`Modified Terms”), provided as follows: “PLEASE REVIEW THIS AGREEMENT
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`CAREFULLY, IN PARTICULAR THE MUTUAL ARBITRATION PROVISION IN THE
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`DISPUTES SECTION . . . .” Id. at 1. The arbitration provision, in turn, stated that “[t]he
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`parties mutually agree to resolve any and all disputes between them exclusively through final,
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`binding, and individual arbitration instead of filing a lawsuit in court” and that the arbitration
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`will be “governed exclusively by the FAA.” Id. at 8-10. The agreement includes a delegation
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`3
`References to page numbers in the Postmates Merchant Agreement are to the page
`numbers automatically generated by the Court’s ECF system.
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`6
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`Case 1:21-cv-04995-JMF Document 79 Filed 03/01/22 Page 7 of 15
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`clause, instructing that “[o]nly an arbitrator, and not any federal, state, or local court or agency,
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`will have the exclusive authority to resolve any dispute relating to the interpretation,
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`applicability, enforceability, or formation of this mutual arbitration provision, including without
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`limitation any dispute concerning arbitrability.” Id. at 10. It too includes an opt-out provision,
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`which allows a merchant to opt-out of the arbitration provision within thirty days of acceptance
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`of the agreement, as well as a class action waiver. Id.
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`LEGAL STANDARDS
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`Under the Federal Arbitration Act, (“FAA”), 9 U.S.C. § 1 et seq., parties may contract to
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`arbitrate their disputes, and such agreements are “valid, irrevocable, and enforceable, save upon
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`such grounds as exist at law or in equity for the revocation of any contract.” Id. § 2. The FAA
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`“embodies a national policy favoring arbitration” founded upon “a desire to preserve the parties’
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`ability to agree to arbitrate, rather than litigate, [their] disputes.” Schnabel v. Trilegiant Corp.,
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`697 F.3d 110, 118 (2d Cir. 2012) (cleaned up). Indeed, Congress passed the Act in order to
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`counteract “judicial hostility” toward arbitration, Allied-Bruce Terminix Cos., Inc. v. Dobson,
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`513 U.S. 265, 270-72 (1995), and to “place[] arbitration agreements upon the same footing as
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`other contracts,” Schnabel, 697 F.3d at 118 (quotation marks omitted). Arbitration remains,
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`however, “a matter of consent, and thus is a way to resolve those disputes — but only those
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`disputes — that the parties have agreed to submit to arbitration.” Granite Rock Co. v. Int’l Bhd.
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`of Teamsters, 561 U.S. 287, 299 (2010) (internal citations and quotation marks omitted).
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`“The threshold question facing any court considering a motion to compel arbitration is
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`therefore whether the parties have indeed agreed to arbitrate.” Schnabel, 697 F.3d at 118.
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`Whether or not the parties have agreed to arbitrate is a question of state contract law. Specht v.
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`Case 1:21-cv-04995-JMF Document 79 Filed 03/01/22 Page 8 of 15
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`Netscape Commc’ns Corp., 306 F.3d 17, 26 (2d Cir. 2002).4 “If the court finds that the parties
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`agreed to arbitrate, it should then consider whether the dispute falls within the scope of the
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`arbitration agreement.” Id. The FAA, however, “allows parties to agree by contract that an
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`arbitrator, rather than a court, will resolve threshold arbitrability questions as well as underlying
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`merits disputes.” Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 527 (2019).
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`If the parties make such a delegation, the only job that remains for the court is to determine “the
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`fundamental question of whether they formed the agreement to arbitrate in the first place.”
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`Doctor’s Assocs., Inc. v. Alemayehu, 934 F.3d 245, 251 (2d Cir. 2019); see also id. (“[W]e first
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`look to see if an agreement to arbitrate was formed, then determine if it contains a delegation
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`clause. . . . Arguments that an agreement to arbitrate was never formed . . . are to be heard by the
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`court even where a delegation clause exists.” (quoting Edwards v. Doordash, Inc., 888 F.3d 738,
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`744 (5th Cir. 2018))). The party seeking to compel arbitration “bears [the] initial burden of
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`demonstrating that an agreement to arbitrate was made”; the burden then shifts to the party
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`resisting arbitration to show that the agreement is inapplicable or invalid. Hines v.
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`Overstock.com, 380 F. App’x 22, 24 (2d Cir. 2010) (summary order); see also Harrington v.
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`Atlantic Sounding Co., Inc., 602 F.3d 113, 124 (2d Cir. 2010).
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`4
`Here, even though two of the contracts at issue (for DoorDash and Uber Eats) include
`choice-of-law provisions adopting California law, the law of New York — the state where
`Plaintiff is located and entered the contracts at issue — applies to the question of contract
`formation. See Schnabel, 697 F.3d at 119 (“Applying the choice-of-law clause to resolve the
`contract formation issue would presume the applicability of a provision before its adoption by
`the parties has been established.”). In any event, the Second Circuit has held that “New York
`and California apply substantially similar rules for determining whether the parties have
`mutually assented to a contract term.” Meyer v. Uber Techs., Inc., 868 F.3d 66, 74 (2d Cir.
`2017) (internal quotation marks omitted).
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`8
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`Case 1:21-cv-04995-JMF Document 79 Filed 03/01/22 Page 9 of 15
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`DISCUSSION
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`Applying the foregoing standards, the Court concludes that Plaintiff is obligated to
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`arbitrate its claims against Grubhub, Uber Eats, and DoorDash. By contrast, Plaintiff is not
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`obligated to arbitrate its claims against Postmates. The Court will begin with the motions of
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`Grubhub, Uber Eats, and DoorDash, which can be addressed together.
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`A. Plaintiff Must Arbitrate Its Claims Against Grubhub, Uber Eats, and DoorDash
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`Significantly, Plaintiff does not dispute that it entered into valid contracts with Grubhub,
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`Uber Eats, and DoorDash, pursuant to which it agreed to arbitration of “all claims or disputes
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`arising out of the Agreement,” Grubhub Terms 5, “[a]ny dispute, whether contractual or
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`otherwise, arising out of or in connection with this Agreement,” Uber Eats Terms § 17.1, or
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`“[a]ny dispute, controversy or claim arising out of, relating to or in connection with this
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`contract,” DoorDash Terms § 17.1, respectively. Instead, Plaintiff’s principal argument is that
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`this dispute does not fall within the ambit of its arbitration agreements. See Pl.’s Opp’n 8. But
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`whether its arguments on that score are valid is not for this Court to say because, in the case of
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`each delivery service, the contract at issue plainly delegates the question of arbitrability to the
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`arbitrator. See Uber Eats Terms § 17.1 (“The Arbitrator shall also be responsible for determining
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`all threshold arbitrability issues, including issues relating to whether this Agreement is
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`unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or
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`estoppel.”); DoorDash Terms § 17.3 (“The arbitrator, and not any federal, state, or local court or
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`agency, shall have exclusive authority to resolve any dispute relating to the interpretation,
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`applicability, enforceability or formation of this Arbitration Agreement including, but not limited
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`to any claims that all or any part of this Arbitration Agreement is void or voidable.”); Grubhub
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`9
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`Case 1:21-cv-04995-JMF Document 79 Filed 03/01/22 Page 10 of 15
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`Terms 5 (“This arbitration will be conducted before a single arbitrator under the Commercial
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`Arbitration Rules of the American Arbitration Association (“AAA”)).5
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`Conspicuously, Plaintiff addresses the issue of delegation in just one paragraph of its
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`opposition, arguing, without citation, that “it is axiomatic that if the Court finds that the
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`arbitration agreements do not apply to this dispute, neither do the delegation clauses subsumed
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`within them.” Pl.’s Opp’n 15. But the Supreme Court has repeatedly held that courts must
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`analyze the validity of a delegation provision on its own terms, without regard to whether the
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`underlying dispute is subject to arbitration. See, e.g., Rent-A-Center, W., Inc. v. Jackson, 561
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`U.S. 63, 70 (2010) (“An agreement to arbitrate a gateway issue is simply an additional,
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`antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA
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`operates on this additional arbitration agreement just as it does on any other.”); Henry Schein,
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`Inc., 139 S. Ct. at 529 (“When the parties’ contract delegates the arbitrability question to an
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`arbitrator, a court may not override the contract. . . . That is true even if the court thinks that the
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`argument that the arbitration agreement applies to a particular dispute is wholly groundless.”).
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`Indeed, the Court has held that a delegation clause “is valid under § 2 [of the FAA] ‘save upon
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`such grounds as exist at law or in equity for the revocation of any contract,’” Rent-A-Center, 561
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`
`5
`Although the Grubhub Terms do not contain an explicit delegation clause, the Second
`Circuit has held that “when . . . parties explicitly incorporate rules that empower an arbitrator to
`decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the
`parties’ intent to delegate such issues to an arbitrator.” Contec Corp. v. Remote Sol., Co., 398
`F.3d 205, 208 (2d Cir. 2005). Rule 7(a) of the AAA Commercial Arbitration Rules states that
`“[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any
`objections with respect to the existence, scope, or validity of the arbitration agreement or to the
`arbitrability of any claim or counterclaim.” AAA Commercial Arbitration Rules and Mediation
`Procedures, R-7(a) (Oct. 1, 2013); see also Mobile Real Est., LLC v. NewPoint Media Grp., LLC,
`460 F. Supp. 3d 457, 473 n.9 (S.D.N.Y. 2020) (holding that AAA rules require the delegation of
`threshold questions of arbitrability to an arbitrator).
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`10
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`U.S. at 70 (quoting 9 U.S.C. § 2), and “unless [a plaintiff] challenge[s] the delegation provision
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`specifically, [a court] must treat it as valid under § 2, and must enforce it under §§ 3 and 4,
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`leaving any challenge to the validity of the Agreement as a whole for the arbitrator,” id. at 72.
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`Plaintiff makes no such challenge here. Accordingly, the Court is compelled to conclude that the
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`threshold questions of arbitrability with respect to Plaintiff’s claims against Uber Eats, Grubhub,
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`and DoorDash are for the relevant arbitrator to decide and, thus, that their motions to compel
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`arbitration must be granted.
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`The Uber Eats, Grubhub, and DoorDash Terms each also include a class action waiver.
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`See Grubhub Terms 5; Uber Eats Terms § 17.1(vii); DoorDash Terms § 17.5. Grubhub’s waiver
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`specifies that “the interpretation, applicability and enforceability of the Class Action Waiver may
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`only be determined by a court and not an arbitrator.” Grubhub Terms 5. Plaintiff asserts that the
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`Uber Eats and DoorDash contracts include similar provisions, see Pl.’s Opp’n 16-17, but the
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`citations that Plaintiff provides are incorrect and the contracts do not appear to contain similar
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`provisions.6 In any event, the Supreme Court and the Second Circuit have consistently held that
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`class action waivers like the ones at issue here are generally enforceable and do not make an
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`arbitration agreement unconscionable. See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1619
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`(2018) (“Congress has instructed federal courts to enforce arbitration agreements according to
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`their terms — including terms providing for individualized proceedings.”); AT&T Mobility LLC
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`v. Concepcion, 563 U.S. 333, 352 (2011) (holding that the FAA preempts a California judicial
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`6
`DoorDash’s revised contract of June 1, 2021, ECF No. 60-8 (“DoorDash Modified
`Terms”), to which Plaintiff argues it has not assented, see Pl.’s Opp’n 14-15, does include such a
`provision. See DoorDash Modified Terms § 17(g) (“Notwithstanding any other provision in this
`Agreement, any claim that all or part of this Waiver of Class or Consolidated Actions is
`unenforceable, unconscionable, void or voidable may be determined only by a court of
`competent jurisdiction and not by an arbitrator.”). This is immaterial, however, for the reasons
`described above.
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`rule classifying collective-arbitration waivers in consumer contracts as unconscionable);
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`American Express Co. v. Italian Colors Rest., 570 U.S. 228, 236 (2013) (“The class-action
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`waiver merely limits arbitration to the two contracting parties. It no more eliminates those
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`parties’ right to pursue their statutory remedy than did federal law before its adoption of the class
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`action for legal relief in 1938.”); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 296 (2d Cir.
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`2013) (holding that class action waivers mut be enforced absent a “contrary congressional
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`command”); Horton v. Dow Jones & Co., Inc., 804 F. App’x 81 (2d Cir. 2020) (summary order)
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`(“[A] contractual proscription against class actions is neither unconscionable nor violative of
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`public policy.”). Plaintiff argues — again, without citation — that, “[s]ince the Arbitration
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`Agreements do not apply to this dispute . . . it follows that the class action waivers, subsumed in
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`the Service Agreements, also do not apply to Plaintiff’s claims.” Pl.’s Opp’n 15. But here too,
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`the Court must analyze the validity of the class action waivers at issue independently from the
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`underlying disputes. See, e.g., Rent-A-Center, 561 U.S. at 72 (“Application of the severability
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`rule does not depend on the substance of the remainder of the contract. Section 2 operates on the
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`specific ‘written provision’ to ‘settle by arbitration a controversy’ that the party seeks to
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`enforce.”); see also Saizhang Guan v. Uber Techs. Inc., 236 F. Supp. 3d 711, 733-34 (E.D.N.Y.
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`2017). Once again, Plaintiff fails to raise a specific challenge to the validity of the class action
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`waivers. Accordingly, the Court finds that the class action waivers are valid and that Plaintiff
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`must proceed with individual arbitration.
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`B. Plaintiff Did Not Agree to Arbitrate Its Claims Against Postmates
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`By contrast, the Court concludes that Plaintiff did not agree to arbitrate its claims against
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`Postmates. Significantly, there is no dispute that Plaintiff’s initial agreement with Postmates did
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`not contain any arbitration clause. Postmates’s motion to compel arbitration depends instead on
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`the Postmates Modified Terms, which do include an arbitration clause. Postmates Modified
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`Terms 8-10. Postmates argues that the Postmates Modified Terms are enforceable “because
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`Plaintiff was on notice of the revised terms, and consented to be bound by the revised contract.”
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`ECF No. 77 (“Uber & Postmates Reply”), at 6. Plaintiff disagrees, countering that Postmates
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`cannot establish “that Plaintiff was aware of any update,” let alone that “Plaintiff affirmatively
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`assented to be bound by [the revised terms].” Pl.’s Opp’n 14. Confronted with similar facts,
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`courts have reached different conclusions with respect to the enforceability of such modified
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`terms. Compare, e.g., Schnabel, 697 F.3d at 113 (“[T]he email did not provide sufficient notice
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`to the plaintiffs of the arbitration provision, and the plaintiffs therefore could not have assented
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`to it solely as a result of their failure to cancel their enrollment in the defendants’ service.”), with
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`Starkey v. G Adventures, Inc., 796 F.3d 193, 197 (2d Cir. 2015) (“[Defendant’s] emails thus
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`sufficiently directed [the plaintiff’s] attention to the Booking Terms and Conditions by means of
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`a hyperlink and language advising [the plaintiff] to click on the hyperlink.”).
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`The Court need not and does not resolve the parties’ disagreement because Postmates’s
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`motion to compel arbitration fails for a more fundamental reason: The initial agreement that
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`Plaintiff signed unambiguously prohibits unilateral modification. Instead, it provides that “[t]his
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`Agreement may be amended only by a written document executed by both Parties, which may
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`include electronic signatures.” Postmates Terms 6 (emphasis added). By conspicuous contrast,
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`another provision in the agreement specifies that “Postmates reserves the right to update the
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`Postmates’ Privacy Policy at any time without notice to Merchant.” Id. at 2. And even more to
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`the point, the Postmates Modified Terms, which Plaintiff did not sign, provide that “Postmates
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`may update or modify this agreement at any time without prior notice, and such changes will be
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`effective immediately.” Postmates Modified Terms 11. The problem for Postmates is that the
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`initial contract, by its plain terms, allowed for modification only by a written document signed
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`by both parties. It follows that the Postmates Modified Terms, which were not signed by
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`Plaintiff, are not effective as to Plaintiff and that the original agreement, which concededly
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`includes no arbitration agreement, governs their relationship. See Cal. Com. Code § 2209(2) (“A
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`signed agreement which excludes modification or rescission except by a signed writing cannot
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`be otherwise modified or rescinded.”); Hoston v. J.R. Watkins Co., 300 F.2d 869, 872 (9th Cir.
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`1962) (“It . . . appears to be the law of California that an express provision in a contract . . . to the
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`effect that a document constitutes the entire agreement between the parties and shall not be
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`varied, changed or modified except in writing signed by the parties, is a valid provision.”).7
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`Accordingly, Postmates’s motion to compel arbitration must be and is denied.
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`CONCLUSION
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`For the reasons stated above, the Court grants the motions of Grubhub, Uber Eats, and
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`DoorDash to compel arbitration. In addition, the Court grants their requests to stay this action
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`pending these arbitrations. See 9 U.S.C. § 3 (“[T]he court . . . , upon being satisfied that the issue
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`involved in such suit or proceeding is referrable to arbitration . . . , shall on application of one of
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`the parties stay the trial of the action until such arbitration has been had in accordance with the
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`terms of the agreement.” (emphasis added)); Katz v. Cellco P’ship, 794 F.3d 341, 347 (2d Cir.
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`2015) (“[T]he text, structure, and underlying policy of the FAA mandate a stay of proceedings
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`
`7
`Because the original Postmates contract includes a California choice-of-law provision,
`Postmates Terms 6, the Court applies California law to issues of contract interpretation (as
`opposed to formation). In any event, the result would be the same under New York law. See
`N.Y. Gen. Oblig. Law § 15-301(1) (“A written agreement . . . which contains a provision to the
`effect that it cannot be changed orally, cannot be changed by an executory agreement unless such
`executory agreement is in writing and signed by the party against whom enforcement of the
`change is sought.”); TrueNorth Cap. Partners LLC v. Hitachi Metals, Ltd., 723 F. App’x 22 (2d
`Cir. 2018) (summary order) (“New York law . . . enforces the requirement of a signed writing
`before the parties may depart from a contractual term.”).
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`Case 1:21-cv-04995-JMF Document 79 Filed 03/01/22 Page 15 of 15
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`when all the claims in an action have been referred to arbitration and a stay requested.”). By
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`contrast, Postmates’s motions to compel arbitration and for a stay are denied. Postmates shall
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`answer the Compla