Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 1 of 23
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`Sonia Spates, individually on behalf of herself
`and all others similarly situated,
`
`
`Plaintiff,
`
`No. 1:21-cv-10155-ALC
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`
`
`
`
`– against –
`
`
`Uber Technologies, Inc.,
`
`
`Defendants.
`
`PLAINTIFFS’ MEMORANDUM OF
`LAW IN OPPOSITION TO MOTION TO
`COMPEL ARBITRATION
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`
`
`
`
`
`
`
`
`
`REESE LLP
`Sue J. Nam
`snam@reesellp.com
`Michael R. Reese
`mreese@reesellp.com
`100 West 93rd Street, 16th Floor
`New York, New York 10025
`Telephone: (212) 643-0500
`Facsimile: (212) 253-4272
`
`REESE LLP
`Charles D. Moore
`cmoore@reesellp.com
`100 South 5th Street, Suite 1900
`Minneapolis, MN 55402
`Telephone: (212) 643-0500
`Facsimile: (212) 253-4272
`
`Counsel for Plaintiff
`and the Proposed Class
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`
`
`
`
`
`
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`

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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 2 of 23
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`TABLE OF CONTENTS
`TABLE OF AUTHORITIES ............................................................................................................ iii
`
`INTRODUCTION ............................................................................................................................. 1
`
`STATEMENT OF FACTS ................................................................................................................ 2
`
`A. Uber’s Designation of the AAA as the Sole Arbitral Body
`and the Laws of California as Governing .............................................................................. 2
`
`B. Uber’s Pending Litigation Against the AAA. ........................................................................ 3
`
`C. Litigation Regarding Uber’s Bait-and-Switch Scheme to Overcharge .................................. 5
`
`ARGUMENT..................................................................................................................................... 7
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`I. Uber Did Not Meet Its Burden to Prove the Existence of an Agreement to Arbitrate .............. 7
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`II. The Delegation Clause Is Unconscionable and Cannot Be Enforced ....................................... 9
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`A. This Gateway Issue of Arbitrability Is for This Court to Determine
`under California Law ............................................................................................................. 9
`
`B. Plaintiff Specifically Challenges the Delegation Clause ..................................................... 11
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`C. The Requirement to Proceed Before the AAA Is Unconscionable ...................................... 11
`
`1.
`
`2.
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`Procedural Unconscionability ....................................................................................... 12
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`Substantive Unconscionability ..................................................................................... 14
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`III. The Appointment of the AAA as the Sole Arbitral Body Cannot Be Severed,
`Rendering the Entirety of the Arbitration Provision Unenforceable ....................................... 18
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`CONCLUSION ............................................................................................................................... 19
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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 3 of 23
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`TABLE OF AUTHORITIES
`
`Cases
`
`Aleksanian v. Uber Techs., Inc., 524 F.Supp.3d 251 (S.D.N.Y. 2021) ................................................ 7
`
`Am. Family Life Assurance Co. of N.Y. v. Baker, 778 F. App.’x 24 (2d Cir. 2019) .......................... 10
`
`Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal.4th 83 (2000) ......................... 12, 13, 14
`
`AT & T Techs., Inc. v. Commc'ns Workers of America, 475 U.S. 643 (1986) ................................... 10
`
`AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) .......................................................... 10, 13
`
`Bensadoun v. Jobe-Riat, 316 F.3d 171 (2d Cir. 2003) ......................................................................... 7
`
`BG Grp, PLC v. Rep. of Argentina, 572 U.S. 25 (2014) .................................................................... 18
`
`Brower v. Gateway 2000, Inc., 676 N.Y.S.2d 569 (1st Dep't 1998) .................................................. 12
`
`Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) ................................................................. 13
`
`Chavarria v. Ralphs Grocery Co., 733 F.3d 916 (9th Cir. 2013) ...................................................... 13
`
`CIT Group/Business Credit, Inc. v. Phoenix Fuel, LLC, No. CV 09-3387-GHK (RZx),
`2010 WL 11597290 (C.D. Cal. May 7, 2010) ............................................................................. 8
`
`Epstein v. Vision Service Plan 56 Cal.App.5th 223 (2020) ............................................................... 14
`
`First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) ........................................................ 10
`
`Gillman v. Chase Manhattan Bank. N.A., 73 N.Y.2d 1 (1988) .......................................................... 12
`
`Graham v. Scissor-Tail, Inc., 28 Cal.3d 807 (1981) .......................................................................... 14
`
`Gringas v. Think Fin., Inc., 922 F.3d 112 (2d Cir. 2019), cert. denied, 140 S. Ct. 856 (2020) ......... 11
`
`Halligan v. Piper Jaffray, Inc., 148 F.3d 197 (2d Cir.1998).............................................................. 15
`
`Hines v. Anchor Motor Freight, 424 U.S. 554 (1976) ...................................................................... 14
`
`Hines v. Overstock.com, Inc., 380 F. App’x 22 (2d Cir. 2010)............................................................ 7
`
`In re Salomon Inc. Shareholders' Derivative Litigation, 68 F.3d 554 (2d Cir. 1995) ....................... 18
`
`Kinney v. United Healthcare Servs., Inc., 70 Cal.App.4th 1322 (1999) ............................................ 12
`
`Magno v. The College Network, Inc. 1 Cal.App.5th 277 (2016) ........................................... 15, 16, 18
`
`Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530 (2012) ........................................................ 10
`iii
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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 4 of 23
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`Mastrobuono v. Shearson Lehman Hutton, 514 U.S. 523 (1995) ...................................................... 11
`
`Matter of Friedman, 407 N.Y.S.2d 999 (2d Dep't 1978) ................................................................... 12
`
`Matthew v. Uber Technologies Inc., Case No. CGC-20-58452 (Cal. Sup. Ct) .................................... 5
`
`McGill v. Citibank, N.A., 2 Cal.5th 945 (2017)................................................................................ 5, 6
`
`Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017) ...................................................................... 7
`
`Moss v. First Premier Bank, 825 F.3d 260 (2d Cir. 2016)................................................................. 18
`
`Newton v. Am. Debt Serv., Inc., 854 F.Supp.2d 712 (N.D. Cal. 2012),
`aff’d, 549 F. App'x 692 (9th Cir. 2013) .......................................................................... 15, 16, 18
`
`Newton v. Am. Debt. Servs., Inc., 549 F. App'x 692 (9th Cir. 2013) ................................................. 13
`
`Nicosia v. Amazon.com, Inc., 834 F.3d 220 (2d Cir. 2016) ................................................................. 7
`
`Really Good Stuff, LLC v. BAP Investors, No. 19 Civ. 2218 (LLS) (GWG),
`2021 WL 2469707 (S.D.N.Y. June 17, 2021) .............................................................................. 8
`
`Reed v. Uber Technologies, Inc., No. 22-cv-00596 (N.D. Cal.) .......................................................... 6
`
`Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) ................................................................ 11
`
`Sanchez v. Western Pizza Enter., Inc., 172 Cal.App.4th 154 (2009), abrogated on
`separate grounds, Iskanian CLS Trans. Los Angeles, 59 Cal.4th 348, 366 (2014) ............. 15, 16
`
`Serafin v. Balco Prop. Ltd, LLC, 235 Cal.App.4th 165 (2015) ......................................................... 14
`
`Sonic-Calabasas A, Inc. v. Moreno, 57 Cal.4th 1109 (2013) ............................................................ 13
`
`Tiri v. Lucky Chances, Inc., 226 Cal.App.4th 231 (2014) ..................................................... 11, 12, 14
`
`United States v. Gasperini, 894 F.3d 482 (2d Cir. 2018) ..................................................................... 8
`
`Wherry v. Award, Inc. 192 Cal.App.4th 1242 (2011) ........................................................................ 14
`
`Statutes
`
`9 U.S.C. § 1 .......................................................................................................................................... 7
`
`9 U.S.C. § 2 .................................................................................................................................. 10, 11
`
`Rules
`
`Fed. R. Evid. 1002 ................................................................................................................................ 8
`
`Fed. R. Evid. 1006 ................................................................................................................................ 9
`
`
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`iv
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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 5 of 23
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`Plaintiff Sonia Spates (“Plaintiff”) hereby submits the following in opposition to the
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`motion by Uber Technologies, Inc. (“Defendant” or “Uber”) to compel arbitration, ECF No. 8
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`(“Motion” or “Mot.”).
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`INTRODUCTION
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`Uber moves to compel arbitration, claiming that Plaintiff ignored the binding arbitration
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`agreement that covers her claims. Uber fails to disclose a crucial fact: Uber sued the American
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`Arbitration Association (“AAA”), the sole arbitral body that it designated in its Terms of Use, and
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`refused to pay the AAA tens of millions of dollars in arbitration fees. But this is no simple fee
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`dispute. In Uber Technologies, Inc. v. American Arbitration Association, Inc., Index No.
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`655549/2021, currently pending in New York state court, Uber accused the AAA of taking
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`advantage of “a ransom orchestrated by politically-motivated lawyers” in order to make an
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`“exorbitant demand” that would result in a windfall for its arbitrators. See Uber’s Declaratory
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`Judgment Complaint, attached as Ex. 1 to Declaration of Sue J. Nam in Opposition to Defendant’s
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`Motion to Compel Arbitration (“Nam Decl.”), at ¶¶ 1, 73-79. Uber alleged that the AAA is
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`voluntarily “playing along” with efforts to “punish Uber for supporting the Black community in
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`the wake of George Floyd’s murder.” Id. at ¶ 1. Uber in effect suggested that the AAA may be
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`tainted by greed and/or racial insensitivity. Uber also claimed that the AAA acted unreasonably,
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`unjustly, unconscionably, unlawfully, and unfairly. See, e.g., id. at ¶¶ 1, 4, 7, 76, 92, 96, 97, 98,
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`106, 107, 112, 113. In light of these grave allegations, Uber’s claim that “this lawsuit has nothing
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`to do with the merits of any underlying arbitral dispute,” id. at ¶ 2, rings hollow.
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`Rather than avail itself of private arbitration, which Uber imposes on its users, Uber chose
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`to publicly air its grievances against the AAA and expressly called into question the integrity of
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`the AAA, the one and only arbitral organization that it mandates in its Terms of Use. As a result,
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`the delegation clause—and the entire mandatory arbitration provision—is unconscionable and
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`1
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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 6 of 23
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`cannot be enforced because Uber’s highly charged accusations fundamentally erodes the neutrality
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`of the AAA. Uber cannot throw flames yet ignore the fire and smoke that ensues.
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`STATEMENT OF FACTS
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`A. Uber’s Designation of the AAA as the Sole Arbitral Body and the Laws of California as
`Governing
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`According to Uber, its Terms of Use require all of its users to arbitrate most of their claims
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`on an individual basis. See Mot. at 4-5. Uber’s Terms of Use state that the “arbitration will be
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`administered by the American Arbitration Association (‘AAA) in accordance with the AAA’s
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`Consumer Arbitration Rules (the ‘AAA Rules’) then in effect, except as modified by this
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`Arbitration Agreement.” See, e.g., July 2021 Terms, Ex. D to Declaration of Daniel Fishman, ECF
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`No. 9 (“Fishman Decl.”), at Section 2(c) (Rules and Governing Law). Uber’s Terms of Use names
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`no alternative arbitral organization. Id.
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`Uber’s Terms of Use also contains a choice-of-law provision stating:
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`These Terms shall be governed by and construed in accordance with the laws
`of the State of California, U.S.A., without regard to the choice or conflict of law
`principles of any jurisdiction, except as may be otherwise provided in the
`Arbitration Agreement in Section 2 above or in supplemental terms applicable
`to your regions.
`
`Id. at Section 7 (Other Provisions/Choice of Law). Section 2, referred therein at least in the July
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`2021 Terms,1 states:
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`If the FAA and AAA Rules are found to not apply to any issue regarding the
`interpretation or enforcement of this Arbitration Agreement, then that issue
`shall be resolved under the laws of the state where you reside when you accept
`these Terms.
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`
`
`1 In contrast, the December 2017 Terms that allegedly were in effect when Plaintiff first signed up
`for Uber’s service stated: “If the FAA and AAA Rules are found to not apply to any issue regarding
`the interpretation or enforcement of this Arbitration Agreement, then that issue shall be resolved
`under the laws of the state of California.” See December 2017 Terms, Ex. B to Fishman Decl., at
`Section 2 (“Arbitration Agreement). This belies Uber’s contention that all the Terms of Use from
`2018 through 2021 contain “nearly identical” Arbitration Provisions. Mot. at 5, n. 3.
`2
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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 7 of 23
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`Id. at Section 2(c) (Rules and Governing Law) (emphasis added).
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`B. Uber’s Pending Litigation Against the AAA
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`On September 20, 2021, Uber commenced its litigation against the AAA in the Supreme
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`Court of the State of New York. The lawsuit arose over the more than 31,000 demands for
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`arbitration filed by Uber users. Uber sought to have the AAA’s invoices, charging its ordinary fee
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`schedule per case per arbitrator, be declared invalid and to have the AAA account for its actual
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`costs and expenses. See Nam Decl., Ex. 1. This is hardly a typical commercial dispute between
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`Uber and the AAA.
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`Instead, Uber made highly inflammatory charges against the AAA and its arbitrators. In its
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`public lawsuit (and, tellingly, not in a private arbitration), Uber accused the AAA of “unfortunately
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`and unnecessarily playing along, in contravention of its own rules, not to mention basic principles”
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`with “politically motivated lawyers” in their “effort to punish Uber for supporting the Black
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`community in the wake of George Floyd’s murder.” Id. at ¶ 1.
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`Uber alleged that it was the victim of the tactics of Consovoy McCarthy PLLC, a “well-
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`known foe of affirmative action policies.” Id. at ¶¶ 44-52. Uber alleged that the Consovoy Firm
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`orchestrated the filing of 31,573 arbitration demands by Uber users to punish Uber for its support
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`of the Black community. Specifically, Uber alleged:
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`In June 2020, following the death of George Floyd at the hands of Derek
`Chauvin, then an officer with the Minneapolis Police Department and now a
`convicted murderer, Uber publicly announced its support for the millions of
`Americans calling for systemic change. It adopted measures to further promote
`diversity within the company, donated to criminal justice organizations, and
`launched certain initiatives offering support to the Black community. One such
`initiative was implemented through Uber Eats, a platform allowing customers
`to order and pay for food from area restaurants, and to have it delivered to them
`for a location-specific delivery fee. More specifically, in the aftermath of the
`Floyd murder, Uber Eats announced that it would temporarily waive its delivery
`fee for orders placed at certain qualifying Black-owned restaurants.
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`Id. at ¶ 44. Uber claimed that “following Uber’s launch of the Uber Eats fee waiver program,
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`3
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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 8 of 23
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`attorneys at the Consovoy Firm began searching for claimants who might challenge the lawfulness
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`of Uber Eats’ fee waiver,” id. at ¶ 44, and ultimately filed over 31,000 demands for arbitration on
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`behalf of Uber users who alleged that they paid discriminatory fees and were presented with
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`discriminatory terms. Id. at ¶¶ 49-52.
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`Uber not only challenged the AAA’s invoices that charged the full fees of the AAA and its
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`arbitrators, but directly questioned the competency of the AAA in handling the arbitrations at issue.
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`Uber alleged that “it soon became apparent that the AAA was not capable of administering such
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`an overwhelming number of separate arbitrations in the ordinary course.” Id. at ¶ 50. Uber also
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`refuted the AAA’s position that its arbitrators should earn their full compensation because they
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`will be resolving the cases individually on their own merits. Id. at ¶ 73. Uber alleged:
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`The AAA’s position that each arbitrator should earn full fees for each case is
`thus unreasonable. It is simply not plausible that a single arbitrator hearing
`dozens of cases—which address many identical fact questions and precisely
`identical legal ones—would expend nearly the same amount of time as if those
`dozens of arbitrations addressed wholly different fact and legal questions.
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`Id. at ¶ 76 (emphasis in original). Uber further stated that the AAA’s “representations were not
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`accurate,” that AAA made a “false” statement regarding the costs incurred, and that the AAA’s
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`“extraordinary demand” is a “ransom.” Id. at ¶¶ 63, 65.
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`
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`Uber sought declaratory judgment that the AAA breached its contract with Uber “by
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`invoicing Uber for fees and costs that are unreasonable and bear no relation to the AAA’s actual
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`costs and expenses” and that “[t]he AAA’s invoices of Uber are unconscionable.” Id. at ¶¶ 97, 98.
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`Uber also sought declaratory judgment that the AAA breached the implied covenant of good faith
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`and fair dealing; it is “unjust for the AAA to retain those fees because they far outweigh the value
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`of the services they will provide in contravention of the parties’ contract, mutual understanding
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`and expectations, and commercial reasonableness;” and the AAA breached both the “unlawful”
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`and “unfair” prongs of California’s Unfair Competition law, which prohibits unfair competition in
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`4
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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 9 of 23
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`the form of “any unlawful, unfair or fraudulent business act or practice.” Id. at ¶¶ 102-113.
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`
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`On October 13, 2021, the AAA filed a motion to dismiss this suit, which Uber opposed.
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`According to the docket sheet for this case, this motion remains pending. See Uber v. AAA docket
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`sheet for e-filed documents, Ex. 3 to Nam Decl.
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`C. Litigation Regarding Uber’s Bait-and-Switch Scheme to Overcharge
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`Plaintiff alleges in this case that Uber systematically overcharged its users for rides. Class
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`Action Complaint, ECF No. 1. Specifically, Plaintiff alleged that “Defendant promises consumers
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`one price to entice them to use Uber for transportation, to then surreptitiously charge the consumers
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`a highly price later.” Id. at ¶ 3. Defendant was able to accomplish this scheme because it had
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`received the consumers’ method of payment at or before the time Uber gave consumers the upfront
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`price. Uber subsequently would charge the consumers’ credit card (or other method of payment
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`on file) a higher price so that many consumers were unaware of the overcharge and are unaware
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`of it still to this day. Id. at ¶ 4.
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`This is one of three lawsuits that Plaintiff’s counsel has filed on behalf of plaintiffs against
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`Uber alleging that they were overcharged under the same bait-and-switch scheme.
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`Plaintiff’s counsel represents Victiashea Matthews in Matthew v. Uber Technologies Inc.,
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`Case No. CGC-20-58452, filed in the California Superior Court on May 29, 2020. The plaintiff
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`there alleged that Uber similarly overcharged her. See Exhibit B to the Declaration of Claudia M.
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`Vetesi, ECF No. 10 (“Vetesi Decl.”). In opposition to Uber’s motion to compel arbitration in that
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`case, the plaintiff argued that the arbitration provision as a whole, as well as the delegation
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`provision specifically, were unconscionable. She also argued the clause was unenforceable under
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`the California Supreme Court’s decision in McGill v. Citibank, N.A., 2 Cal.5th 945 (2017). The
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`court denied both arguments. See Order, Exhibit C to Vetesi Decl., at 4-5. The court rejected the
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`unconscionability argument, observing that, while there may be at least some procedural
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`5
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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 10 of 23
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`unconscionability, Plaintiff “[did] not demonstrate any substantive unconscionability with regard
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`to the delegation clause/s.” Id. at 5. As a result, it refused to consider the McGill issue, on the
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`grounds that it had been delegated to the arbitrator. Id. At the time of the November 18, 2020 Order,
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`neither the plaintiff nor the court could have foreseen Uber’s litigation against the AAA filed on
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`September 20, 2021.
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`Ms. Matthews commenced arbitration, and the AAA arbitrator ultimately ordered:
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`“Claimant’s claim involving personal damages shall proceed in arbitration with AAA and any
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`claim involving a public injunction shall proceed in a court of law.” Order dated September 23,
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`2021, Ex. 2 to Nam Decl., at 1 (emphasis added). The arbitrator held:
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`It is clear that claims relating to the request for a public injunction are not
`individual claims and therefore are not covered by Uber Terms of Service. The
`public injunction claims are not arbitrable, pursuant to the Terms of Service and
`the holdings in McGill v. Citibank, N.A., (2017), 2 Cal.5th 945, 293 P.3d 85,
`and are therefore, referred to the court of law for determination.
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`Id. at 2. Again, the arbitrator issued this decision not knowing that Uber had filed its lawsuit against
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`the AAA just three days before.
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`On November 30, 2021, after Uber filed its suit against the AAA, the undersigned counsel
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`filed this case on behalf of Plaintiff and a putative class of all consumers who purchased a ride
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`through Uber originating anywhere within New York using Upfront Pricing through the Uber App
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`during the liability period. Complaint at ¶ 50.
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`On January 28, 2022, Counsel also filed a case in the Northern District of California on
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`behalf of Darcheal Reed, Susan Leo Kopko, and Linda Livingston against Uber in an action
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`captioned, Reed v. Uber Technologies, Inc., No. 22-cv-00596 (N.D. Cal.). Counsel represents the
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`plaintiffs in that action and a putative class of all consumers who purchased a ride through Uber
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`using Upfront Pricing through the Uber App within California, Pennsylvania, and Illinois during
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`the liability period. See Class Action Complaint, ECF No. 1, at ¶ 71.
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`
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`6
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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 11 of 23
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`ARGUMENT
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`I.
`
`Uber Did Not Meet Its Burden to Prove the Existence of an Agreement to Arbitrate
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`As the party seeking to compel arbitration, Uber “bears an initial burden of demonstrating
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`that an agreement to arbitrate was made.” Hines v. Overstock.com, Inc., 380 F. App’x 22, 24 (2d
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`Cir. 2010). In deciding motions to compel, courts apply a standard similar to that applicable for a
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`motion for summary judgment. Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003); see
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`also Meyer v. Uber Techs., Inc., 868 F.3d 66, 74 (2d Cir. 2017). “The summary judgment standard
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`requires a court to consider all relevant, admissible evidence submitted by the parties and
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`contained in pleadings, depositions, answers to interrogatories, and admissions on file, together
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`with affidavits.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016) (internal quotation,
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`citations and edits omitted) (emphasis added).2
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`Uber relies on three key pieces of evidence to meet its burden: (1) the statement of its
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`paralegal, Mr. Fishman, that Plaintiff agreed to Uber’s Terms of Use on August 2, 2018, see
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`Fishman Decl. ¶ 6; (2) a historical screenshot of Uber’s registration page on its website on the
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`alleged date of Plaintiff’s registration as obtained from the Internet Archive (a.k.a. Wayback
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`Machine), see Fishman Decl. ¶ 7, Ex. A; and (3) Mr. Fishman’s summary of Uber’s business
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`records to identify the date and method by which Plaintiff consented to the July 2021 Terms, see
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`Fishman Decl. ¶ 18, Ex. F. All three are inadmissible.
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`First, Mr. Fishman claims Ms. Spates agreed to Uber’s Terms of Use on August 2, 2018,
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`based on his review of the rider registration records. See Fishman Decl. ¶ 6. Because Uber seeks
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`to prove the content of those records, namely, that they show that Plaintiff agreed to Uber’s Terms
`
`
`2 In Aleksanian v. Uber Techs., Inc., 524 F.Supp.3d 251, 258 (S.D.N.Y. 2021), this Court held that
`“where the issue of whether the residual clause of § 1 of the FAA applies arises in a motion to
`compel arbitration, the motion to dismiss standard applies . . . .” Here, the residual clause of 9
`U.S.C. § 1 of the FAA is not at issue.
`
`
`7
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`

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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 12 of 23
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`of Use on that date, Uber was required to produce the actual records. See Fed. R. Evid. 1002. But
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`Uber failed to do so. Moreover, Uber cannot simply rely on the review of those records by someone
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`who lacked personal knowledge. The court in CIT Group/Business Credit, Inc. v. Phoenix Fuel,
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`LLC, No. CV 09-3387-GHK (RZx), 2010 WL 11597290 (C.D. Cal. May 7, 2010), explained:
`
`[I]n the absence of independent personal knowledge of the events and facts
`described, we are forced to conclude that [the declarants] have merely reviewed
`business or computer records and reported what they contain. In such a case,
`the best evidence rule requires the production of the underlying business or
`computer records, i.e., authenticated copies or printout of the relevant
`records. . . . Plaintiff has not proffered sufficient evidence to demonstrate that
`[the declarants] had independent personal knowledge of the purported payment
`to JP Morgan. Therefore, the best evidence rule requires that the original
`business or computer records be produced as evidence.
`
`
`Id. at *7.
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`Mr. Fishman does not purport to have independent personal knowledge of the contents of
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`Uber’s business records. Accordingly, his statement cannot be considered, and Uber presents no
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`admissible proof that Plaintiff agreed to Uber’s Terms of Use when she initially signed up for
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`Uber’s services.
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`Second, Uber relies on screenshots from the Wayback Machine to prove what the content
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`of Uber’s website’s registration page purportedly looked like on August 2, 2018. See Fishman
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`Decl. ¶ 7, Ex. A. But such evidence is inadmissible absent authentication by an “office manager”
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`of the Wayback Machine website. See Really Good Stuff, LLC v. BAP Investors, No. 19 Civ. 2218
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`(LLS) (GWG), 2021 WL 2469707, at *10 (S.D.N.Y. June 17, 2021) (“While the Second Circuit
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`has upheld the admission of Wayback Machine evidence, it did so only where an ‘office manager’
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`of the site explained how it worked and authenticated screenshots taken from the archive. United
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`States v. Gasperini, 894 F.3d 482, 489-90 (2d Cir. 2018). Consistent with this ruling, courts have
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`rejected evidence from the Wayback Machine when the only evidence submitted were screenshots
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`attached to an attorney declaration.”) (citing cases). Here, Uber’s screenshots were presented by
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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 13 of 23
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`its own employee, with no authentication or explanation from a qualified employee of the
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`Wayback Machine website.
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`Making matters worse, the screenshots provided by Uber do not present the URL from
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`which the screenshots were derived. Rather, they only show the URL that Mr. Fishman allegedly
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`searched. Fishman Decl. ¶ 7. But these URLs do not match the URLs that Mr. Fishman claims to
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`have searched to derive the screen shots. Compare Fishman Decl. ¶ 7 (“https://get.uber.com/sign-
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`up”) with Ex. A (“https://authr.uber.com/login/?uber_client_name=riderSignUp&”). Thus, the
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`exhibit contradicts Mr. Fishman’s sworn statement, highlighting why testimony from someone
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`from the Wayback Machine website is critical to authentication and admissibility. Because here
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`such testimony is absent, the screenshots are inadmissible.
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`Third, Uber relies on Mr. Fishman’s review of business records to prove that Plaintiff
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`agreed to Uber’s updated terms of use on November 3, 2021. See Fishman Decl. ¶ 18, Ex. F. But
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`Exhibit F appears to be a summary in the form of a spreadsheet presented in PDF format. Although
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`summaries are allowed, the best evidence rule still requires the underlying records be presented.
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`See Fed. R. Evid. 1006. Again, having failed to produce the underlying records, Uber’s summary
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`is inadmissible.
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`With no admissible evidence of Plaintiff’s agreement to its Terms of Use, Uber cannot
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`carry its burden to prove Plaintiff is bound by the delegation clause or the arbitration agreement
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`contained therein. For this reason alone, Uber’s Motion should be denied.
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`II.
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`The Delegation Clause Is Unconscionable and Cannot Be Enforced
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`A. This Gateway Issue of Arbitrability Is for This Court to Determine under
`California Law
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`Uber argues that New York law should apply to any “gateway” disputes about the validity
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`or scope of the arbitration provision because Uber’s Terms of Services “is silent with respect to
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`state law.” Mot. 10. Uber’s Terms of Service certainly is not “silent” on choice of law. Section 7
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`Other Provisions/Choice of Law states in relevant part that the “Terms shall be governed by and
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`construed in accordance with the laws of the State of California . . . except as may be otherwise
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`provided in the Arbitration Agreement in Section 2 . . . .” Section 2 (c) of the July 2021 Terms
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`provides that the “laws of the state where you reside” apply only “[i]f the FAA and AAA Rules
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`are found to not apply to any issue regarding the interpretation or enforcement of this Arbitration
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`Agreement.” See Fishman Decl., Exhibit D, at 5.
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`Plaintiff here does not argue that the FAA or AAA Rules are inapplicable. Indeed, she
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`invokes the express savings clause of Section 2 that states the arbitration provision “shall be valid,
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`irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the
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`revocation of any contract.” 9 U.S.C. § 2 (emphasis added). Arbitration is a matter of contract.
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`AT & T Techs., Inc. v. Commc'ns Workers of America, 475 U.S. 643, 648 (1986). Thus, general
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`contract defenses such as fraud, duress, or unconscionability, grounded in state contract law, may
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`operate to invalidate arbitration agreements. See First Options of Chicago, Inc. v. Kaplan, 514 U.S.
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`938, 944 (1995) (“When deciding whether the parties agreed to arbitrate a certain matter (including
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`arbitrability), courts generally . . . should apply ordinarily state-law principles that govern the
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`formation of contracts”).
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`As discussed further below, Plaintiff contends that the delegation clause—and the entire
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`arbitration agreement—is unconscionable and cannot be enforced. The Supreme Court has
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`clarified that AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), did not preempt a state's
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`general unconscionability laws. See Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530, 532
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`(2012) (per curiam). Thus, such defenses remain viable today. Am. Family Life Assurance Co. of
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`N.Y. v. Baker, 778 F. App.’x 24, 26 (2d Cir. 2019) (“At the same time, generally applicable contract
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`defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration
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`Case 1:21-cv-10155-ALC Document 14 Filed 04/08/22 Page 15 of 23
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`agreements.”) (internal quotation omitted).
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`Because Plaintiff does not dispute that the FAA applies and that the AAA Rules will apply
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`if this matter ultimately proceeds to arbitration, Section 7’s choice-of-law provision mandates that
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`the interpretation and enforcement of Terms of Use, including the delegation clause and the
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`arbitr