`
`
`
`PRECEDENTIAL
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`____________
`
`No. 19-3891
`____________
`
`PAUL O’HANLON, an individual; JONATHAN ROBISON,
`an individual; GAYLE LEWANDOWSKI, an individual;
`IRMA ALLEN, an individual; PITTSBURGHERS FOR
`PUBLIC TRANSIT, a project of Thomas Merton Center,
`Inc., a Pennsylvania non-profit corporation, on behalf of
`themselves and all individuals similarly situated
`
`v.
`
`UBER TECHNOLOGIES, INC., a Delaware Corporation;
`RASIER, LLC, a Delaware Corporation;
`RASIER-CA, LLC, a Delaware Corporation,
` Appellants
`____________
`
`On Appeal from the District Court for the
`Western District of Pennsylvania
`(D.C. No. 2-19-cv-00675)
`Magistrate Judge: Lisa P. Lenihan
`____________
`
`Argued July 2, 2020
`
`
`
`
`
`
`
`
`Before: KRAUSE, PHIPPS, Circuit Judges, and
`BEETLESTONE1
`
`
`(Opinion Filed: March 17, 2021)
`
`
`
`
`Bryan M. Killian
`[ARGUED]
`Stephanie B. Schuster
`Morgan Lewis & Bockius
`1111 Pennsylvania Avenue, N.W.
`Suite 800 North
`Washington, DC 20004
`Counsel for Appellants
`
`
`R. Bruce Carlson
`Kelly K. Iverson
`Carlson Lynch
`1133 Penn Avenue
`5th Floor
`Pittsburgh, PA 15222
`
`Michelle B. Iorio
`Melissa Riess
`[ARGUED]
`Stuart J. Seaborn
`Disability Rights Advocates
`2001 Center Street
`Fourth Floor
`
`
`
`1 Honorable Wendy Beetlestone, District Judge, United
`States District Court for the Eastern District of Pennsylvania,
`sitting by designation.
`
`2
`
`
`
`
`
`
`
`Berkeley, CA 94704
`Counsel for Appellees
`
`
`
`
`____________
`
`OPINION OF THE COURT
`____________
`
`
`
`KRAUSE, Circuit Judge.
`
`As Uber would tell it, when Plaintiffs filed their
`
`disability-discrimination suit in federal court, they wound
`themselves in a Gordian knot: They do not have standing to
`sue unless they would agree to Uber’s Terms of Use, but those
`terms would require Plaintiffs to arbitrate their claim instead of
`litigating it in federal court. Uber urges that the only way to
`untie this knot is for us to reverse the District Court’s ruling
`that Plaintiffs have standing, a decision not generally
`reviewable on interlocutory appeal, as well as its ruling that
`Plaintiffs have no contractual obligation to arbitrate. Our
`precedent, however, makes this case far less knotty than Uber
`suggests. We established in Griswold v. Coventry First LLC
`that, on interlocutory appeal from the denial of a motion to
`compel arbitration, our appellate jurisdiction is confined to
`review of that order. 762 F.3d 264, 269 (3d Cir. 2014). We
`not only have no
`independent obligation
`to
`review
`nonappealable orders—even jurisdictional ones. We also have
`no power to do so unless we can exercise pendent appellate
`jurisdiction over them. See id.
`
`3
`
`
`
`
`
`
`
`This case involves new technology, but that makes
`
`Griswold no less applicable. We therefore will review only the
`District Court’s arbitrability decision, as we have no obligation
`to review its standing decision, and Uber has not demonstrated
`that pendent appellate jurisdiction over that decision would be
`appropriate. And because we agree that Plaintiffs—who have
`never accepted Uber’s
`terms,
`including
`its mandatory
`arbitration clause—cannot be equitably estopped from suing in
`court, we will affirm the District Court’s order denying Uber’s
`motion to compel arbitration.2
`
`I.
`
`Background
`
`Plaintiffs are motorized-wheelchair users who live in
`the Pittsburgh area and the nonprofit Pittsburghers for Public
`Transit, whose mission is to make “transportation . . . available
`and accessible to all, including people with limited mobility.”
`A32. They filed suit in District Court, alleging on behalf of
`themselves, and other similarly situated wheelchair users, that
`the
`ridesharing company Uber discriminated against
`individuals with mobility disabilities by not offering a
`“wheelchair accessible vehicle” (WAV) option
`in
`the
`Pittsburgh area. As charged in the complaint, this practice
`violated Title III of the Americans with Disabilities Act
`(ADA), see 42 U.S.C. §§ 12181 et seq., which prohibits
`“discriminat[ion] . . . on the basis of disability in the full and
`equal enjoyment of the goods, services, facilities, privileges,
`
`
`
`2 Pursuant to 28 U.S.C. § 636(c), the parties consented
`to proceed before a magistrate judge. We therefore refer to the
`Magistrate Judge’s rulings as those of the District Court. See
`Hardy v. Shaikh, 959 F.3d 578, 583 n.4 (3d Cir. 2020).
`
`4
`
`
`
`
`
`
`
`advantages, or accommodations of any place of public
`accommodation,” id. § 12182, and, but for the unavailability of
`WAVs, Plaintiffs would download the Uber app and use its
`ridesharing service.
`
`Uber filed a motion to compel arbitration pursuant to
`the Federal Arbitration Act (FAA), see 9 U.S.C. §§ 3–4,
`contending that even though Plaintiffs had never registered for
`an Uber account or accepted its Terms of Use, they were
`nevertheless bound by the mandatory arbitration clause of that
`agreement. See A57 (“By agreeing to the Terms, you agree
`that you are required to resolve any claim that you may have
`against Uber on an individual basis in arbitration.”). In support
`of its motion, Uber argued specifically that Plaintiffs could not
`establish standing to sue in federal court unless they “step into
`the shoes” of “actual Uber Rider App users who all are bound
`by Uber’s Terms of Use,” A10–11 (citation omitted), and more
`generally that Plaintiffs “necessarily rel[ied] on Uber’s service
`contract to bring suit and should therefore be estopped from
`avoiding [the] obligation[]” to arbitrate, A9.
`
` It
`The District Court rejected both arguments.
`determined that Plaintiffs’ failure to download the Uber app,
`agree to the terms, and perform the “futile gesture” of
`requesting a WAV ride did not prevent them from pleading an
`injury in fact. A11 (quoting Int’l Bhd. of Teamsters v. United
`States, 431 U.S. 324, 366–67 (1977)). More broadly, the
`District Court
`reasoned
`that Plaintiffs’
`disability-
`discrimination claim did not rely on, or even embrace, Uber’s
`Terms of Use, but was instead based on the ADA, a federal
`anti-discrimination statute. The Court thus declined to adopt
`Uber’s “overly-broad interpretation of the law of this Circuit
`regarding the scope of the equitable estoppel exception to bind
`
`5
`
`
`
`
`
`
`
`non-signatories to arbitration,” A9 n.4, which requires the non-
`signatories to have knowingly exploited the agreement for their
`benefit. See E.I. DuPont de Nemours & Co. v. Rhone Poulenc
`Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 200 (3d Cir.
`2001).
`
`Accordingly, the District Court denied the motion to
`compel arbitration, and Uber timely filed this interlocutory
`appeal.
`
`II.
`
`Jurisdiction
`
`The District Court had jurisdiction under 28 U.S.C.
`§ 1331. For our part, “[w]e have appellate jurisdiction over the
`District Court’s denial of defendants’ motion to compel
`arbitration pursuant to 28 U.S.C. § 1291 and the Federal
`Arbitration Act . . . , which provides that ‘[a]n appeal may be
`taken’ from an order denying a petition to compel arbitration.”
`Griswold, 762 F.3d at 268 (quoting 9 U.S.C. § 16(a)(1)(B)).
`
`III. Discussion
`
`On appeal, Uber primarily urges that we cannot reach
`the merits of the motion to compel arbitration without first
`determining that Plaintiffs have standing to bring their
`underlying ADA claim—pursuant to either our independent
`obligation to ensure we have jurisdiction or our pendent
`appellate jurisdiction. If Uber does not prevail on the standing
`issue, it maintains that Plaintiffs are nevertheless equitably
`estopped from refusing to arbitrate. For the following reasons,
`we conclude that we may not reach the standing issue in this
`interlocutory appeal and that Plaintiffs are not bound to
`arbitrate under an agreement they have never accepted or
`knowingly exploited.
`
`6
`
`
`
`
`
`
`
`A. We Have No Obligation or Authority to Review
`Standing
`
`We are not persuaded by Uber’s arguments that we
`either must or, in our discretion, should decide whether
`Plaintiffs have standing to sue. The former argument is
`squarely foreclosed by Griswold, which held that, on
`interlocutory appeal of a motion to compel arbitration, we have
`no independent obligation to assess the plaintiff’s standing to
`sue. 762 F.3d at 269. The latter argument also falls flat, but
`for a different reason: Pendent appellate jurisdiction requires
`the nonappealable standing issue to be inextricably intertwined
`with the appealable arbitrability issue, see id., which, in this
`case, it is not. We address each argument in turn.
`
`1.
`
`We Are Not Required
`Plaintiffs’ Standing to Sue
`
`to Adjudicate
`
`Uber’s first argument—that we must assure ourselves
`Plaintiffs have standing to bring their underlying claim—
`returns us to the familiar terrain of Griswold. There, as here,
`the district court concluded both that plaintiffs had Article III
`standing to sue and that they were not compelled to arbitrate
`pursuant to a contract they had never signed.3 762 F.3d at 268.
`
`
`3 While the district court in Griswold concluded that
`plaintiffs had standing in the course of denying the defendants’
`motion to dismiss, the District Court here stated that
`“Plaintiffs’ Article III standing [was] established” in the course
`of denying defendant Uber’s motion to compel. For our
`purposes, this is a distinction without a difference, as Uber
`essentially conceded at oral argument. See Oral Arg. at 2:25,
`
`
`7
`
`
`
`
`
`
`
`And like Uber, the appellant there argued “that [this Court has]
`not only the authority but the obligation to determine whether
`Appellees possess standing because
`it
`is a
`threshold
`
`
`
`Inc.
`v. Uber Techs.,
`O’Hanlon
`19-3891),
`(No.
`https://www2.ca3.uscourts.gov/oralargument/audio/19-
`3891_OHanlonv.UberTechnologies.mp3.
`
`To the extent it argued otherwise in its briefing, Uber
`was mistaken in any event. Uber cited In re Majestic Star
`Casino, LLC, 716 F.3d 736 (3d Cir. 2013), for the proposition
`that we must assess standing to sue on appeal if “there was no
`lower-court order refusing to dismiss the case on standing
`grounds.” Reply Br. 4. As we indicated in Griswold, however,
`we analyzed standing to sue in Majestic Star Casino as a matter
`of pendent jurisdiction, i.e., because “the standing issue . . .
`was inextricably intertwined with the merits of the case.”
`Griswold, 762 F.3d at 269 (citing Majestic Star Casino, 716
`F.3d at 749). Thus, although we noted that “the standing issue
`[in Majestic Star Casino] was raised for the first time on
`appeal,” id., our point was not that we could review standing
`on interlocutory appeal because there was no order denying a
`motion to dismiss; it was that we would review standing where
`there was pendent appellate jurisdiction “even though the issue
`was not addressed before,” Majestic Star Casino, 716 F.3d at
`748—reaffirming the principle that as a “court of review, not
`of first view,” Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019)
`(citation omitted), we will analyze a legal issue without the
`district court’s having done so first only in extraordinary
`circumstances. Regardless, in this case, the issue was raised
`before the District Court and, as Uber acknowledged at
`argument, was also ruled upon.
`
`8
`
`
`
`
`
`
`
`jurisdictional requirement both in the district court and on
`appeal.” Id. (internal quotation marks and citation omitted).
`
`We rejected that argument, cautioning that “although
`standing is always a threshold issue, standing to appeal should
`not be confused with standing to sue.” Id. at 269. Otherwise,
`we recognized, challenges to standing would blow a gaping
`hole in the final decision rule of 28 U.S.C. § 1291, with
`defendants reflexively taking interlocutory appeals in the
`“countless cases where a district court rejected a defendant’s
`challenge to the plaintiff’s standing.” Id. (quoting Petroleos
`Mexicanos Refinacion v. M/T King A (Ex-Tbilisi), 377 F.3d
`329, 335 (3d Cir. 2004)). Instead, we concluded, where “a
`district court has [already] determined that a plaintiff has
`standing to sue, our power to adjudicate [the standing-to-sue]
`issue on an interlocutory basis is limited” to pendent appellate
`jurisdiction. Id.
`
`Griswold’s logic is well grounded in Supreme Court
`precedent and applies to this case with full force. The
`distinction it drew between standing to appeal and standing to
`sue comports with the mandate that the standing analysis be
`tailored to the “type of relief sought.” Summers v. Earth Island
`Inst., 555 U.S. 488, 493 (2009). And in the context of an
`interlocutory appeal under the FAA, that means we look not to
`the plaintiff and the relief sought in the underlying action, but
`to “[the] litigant who asks for . . . immediate appeal” and “the
`category of order appealed from.” Arthur Andersen LLP v.
`Carlisle, 556 U.S. 624, 628 (2009) (internal quotation marks
`and citation omitted); see Raytheon Co. v. Ashborn Agencies,
`Ltd., 372 F.3d 451, 453–54 (D.C. Cir. 2004). To the extent we
`may “look
`through”
`to
`the “underlying substantive
`controversy,” it is for the singular purpose of “determin[ing]
`
`9
`
`
`
`
`
`
`
`whether it is predicated on an action that ‘arises under’ federal
`law.” Vaden v. Discover Bank, 556 U.S. 49, 62 (2009). In
`short, what Griswold and these cases teach is that on
`interlocutory appeal of the denial of a motion to compel
`arbitration, we must assure ourselves of jurisdiction in two, and
`only two, respects: (1) that the appellant has standing to appeal,
`see id.; Griswold, 762 F.3d at 268, and (2) that, “save for [the
`arbitration] agreement,” the district court “would have
`jurisdiction under title 28, in a civil action . . . of the subject
`matter of a suit arising out of the controversy between the
`parties,” 9 U.S.C. § 4.
`
`Both requirements are met here. First, by petitioning
`for review under Section 4 of the FAA, Uber necessarily
`alleged that it was “[a] party aggrieved by the alleged failure,
`neglect, or refusal of another to arbitrate under a written
`agreement for arbitration.” 9 U.S.C. § 4. It alleged, in other
`words, standing to appeal: that it “suffered an injury in fact”
`that was “caused by” Plaintiffs, Thole v. U. S. Bank N.A., 140
`S. Ct. 1615, 1618 (2020), and that—because the FAA allows
`Uber to appeal “an order . . . denying a petition under section
`4 of this title to order arbitration to proceed,” 9 U.S.C.
`§ 16(a)(1)(B)—that injury is one that “would likely be
`redressed by the requested judicial relief,” Thole, 140 S. Ct. at
`1618. And second, because Plaintiffs’ ADA claim against
`Uber presents a federal question, it is undoubtedly a
`“controversy between the parties” over which, “save for [the
`alleged arbitration] agreement,” 9 U.S.C. § 4, the District
`Court would have subject matter jurisdiction under title 28.
`See Vaden, 556 U.S. at 62. As a result, we have jurisdiction
`over this appeal, and in view of our “limited” authority “to
`adjudicate [standing to sue] on an interlocutory basis,”
`
`10
`
`
`
`
`
`
`
`Griswold, 762 F.3d at 269, we have neither the need nor the
`obligation to ascertain Plaintiffs’ standing to sue.
`
`Uber counters that this case is controlled by Larsen v.
`
`Senate, 152 F.3d 240 (3d Cir. 1998), which requires us to
`resolve all jurisdictional questions on interlocutory appeal, and
`that, because Griswold was decided later, we are “bound by the
`holding in [Larsen] regardless of any conflicting language [in
`Griswold], if there is any.” Pardini v. Allegheny Intermediate
`Unit, 524 F.3d 419, 426 (3d Cir. 2008). The principle Uber
`invokes from Pardini, however, is applicable only where a
`subsequent panel addresses “the same issue” as the former. Id.
`Where there is “substantial doubt as to whether a prior panel
`actually decided an issue,” on the other hand, “the later panel
`should not be foreclosed.” Id. at 427 (citation omitted).
`
` In Larsen, a former
`the case here.
`is
`Such
`Commonwealth justice challenged his impeachment and
`removal from office. Although the district court concluded the
`suit did not raise political questions and was justiciable, it
`dismissed most of the claims, holding, among other things, that
`any property interest in the judicial position was too “highly
`circumscribed,” Larsen, 152 F.3d at 245 (citation omitted)—a
`question it then certified for interlocutory appeal under 28
`U.S.C. § 1292(b), see id. We determined, however, that before
`addressing the justice’s property interest in his position, we had
`to consider whether any federal review was barred by
`federalism concerns or the political-question doctrine because
`justiciability was “not only an issue that we [could] reach, but
`one that we must reach.” Id. Though justiciability is not a
`jurisdictional requirement, see Baker v. Carr, 369 U.S. 186,
`198 (1962), we reasoned that the Supreme Court’s instructions
`to not “‘assume[]’ jurisdiction for the purpose of deciding the
`
`11
`
`
`
`
`
`
`
`merits,” Larsen, 152 F.3d at 245 (quoting Steel Co. v. Citizens
`for a Better Env’t, 523 U.S. 83, 94 (1998)), extended to the
`federalism and political question issues presented.
`
`In urging that Larsen involved “the same issue,”
`Pardini, 524 F.3d at 426, as Griswold and requires any and all
`jurisdictional issues to be adjudicated on interlocutory appeal,
`Uber fails to acknowledge the context-specific inquiry for
`standing, see Summers, 555 U.S. at 493; Arthur Andersen, 556
`U.S. at 628. Larsen arose in the context of a question that was
`certified under § 1292(b) and that we could not address on the
`merits without first determining that the subject matter
`belonged in federal court. Here, as in Griswold, however, no
`justiciability hurdles stand in the way of reaching the merits of
`the arbitrability issue: Uber has standing to appeal the denial
`of
`its motion
`to compel arbitration under 9 U.S.C.
`§ 16(a)(1)(B), and there is no dispute that the District Court
`had subject matter jurisdiction under 28 U.S.C. § 1331. In
`view of the different “type of relief sought,” Summers, 555
`U.S. at 493, and the different “category of order appealed
`from,” Arthur Andersen, 556 U.S. at 628, Larsen does not
`control here because it neither addresses the “same issue” as
`Griswold nor contains “any conflicting language,” Pardini,
`524 F.3d at 426. Griswold, on the other hand, is on all fours.
`
`In sum, having assured ourselves of appellate
`jurisdiction to review the District Court’s denial of Uber’s
`motion to compel arbitration, we have no independent duty to
`also review its ruling that Plaintiffs have standing to sue. See
`Griswold, 762 F.3d at 269. We turn, then, to consider whether
`the doctrine of pendent appellate jurisdiction provides an
`alternative basis for us to review the standing ruling.
`
`12
`
`
`
`
`
`
`
`2.
`
`Pendent Appellate Jurisdiction Is Also
`Lacking
`
`review an otherwise
`to
`We have discretion
`nonappealable issue under our pendent appellate jurisdiction
`where (1) it is “inextricably intertwined” with the appealable
`issue or (2) review is otherwise “necessary to ensure
`meaningful review of the appealable order.” DuPont, 269 F.3d
`at 203. We have cautioned, however, that this authority is
`“narrow . . . and should be used sparingly,” id. (internal
`quotation marks and citation omitted), because overuse would
`“effectively undermine the final decision rule,” Kershner v.
`Mazurkiewicz, 670 F.2d 440, 449 (3d Cir. 1982) (en banc).
`Here, Uber focuses on the first prong and argues that standing
`to sue is “inextricably intertwined” with arbitrability. We are
`not persuaded.
`
`Issues are inextricably intertwined where the appealable
`issue “cannot be resolved without reference to the otherwise
`unappealable issue,” Invista S.A.R.L. v. Rhodia, S.A., 625 F.3d
`75, 88 (3d Cir. 2010) (citation omitted)—for example, if “the
`latter issue directly controls disposition of the former,”
`Kershner, 670 F.2d at 449. It is not enough, however, for the
`two issues to merely “arise out of the same factual matrix.”
`Reinig v. RBS Citizens, N.A., 912 F.3d 115, 130 (3d Cir. 2018).
`If “we are confronted with two similar, but independent,
`issues,” there is no need for pendent appellate jurisdiction so
`long as “resolution of the non-appealable order would require
`us to conduct an inquiry that is distinct from . . . the inquiry
`required to resolve solely the [appealable] issue.” Id. (quoting
`Myers v. Hertz Corp., 624 F.3d 537, 553–54 (2d Cir. 2010)
`(citation omitted)). Simply put, if we can adjudicate the
`appealable order
`“without venturing
`into otherwise
`
`13
`
`
`
`
`
`
`
`nonreviewable matters, we have no need—and therefore no
`power—to examine” those matters. Id. at 131 (internal
`quotation marks and citations omitted).
`
`Such was the case in Griswold, which involved the
`
`same nonappealable issue of standing and appealable issue of
`arbitrability, but the facts necessary for determining standing
`were different from the facts necessary to decide whether,
`under the equitable-estoppel doctrine, “a non-signatory to
`the . . . agreement . . . can be bound to its arbitration clause
`because it reaped the benefits of the contract.” 762 F.3d at 270.
`Because “the factual underpinnings of the [two] issues [we]re
`distinct,” id., we declined to exercise pendent appellate
`jurisdiction.
`
`And such is the case here, where the facts necessary to
`evaluate whether Plaintiffs have demonstrated standing under
`the ADA are different from the facts necessary for assessing
`whether they are bound by Uber’s Terms of Use. Uber likens
`this case to In re Majestic Star Casino, LLC, where we
`analyzed standing to sue after concluding that we could not
`“address the merits” of the appeal without also assessing
`“whether the Debtors ha[d] standing.” 716 F.3d 736, 747 (3d
`Cir. 2013). Here, however, the only link Uber has established
`between the issues of injury-in-fact under the ADA and
`arbitrability under the FAA is its own theory that both arise
`from its Terms of Use. That does not mean, however, that the
`question whether Plaintiffs are equitably estopped from
`rejecting the arbitration clause “cannot be resolved without
`reference to” Plaintiffs’ standing to claim discrimination.
`Invista, 625 F.3d at 88. The two issues are not inextricably
`
`14
`
`
`
`
`
`
`
`intertwined, so we will not review standing to sue under our
`pendent appellate jurisdiction.4 See DuPont, 269 F.3d at 203.
`
`B.
`
`Equitable Estoppel Does Not Bind Plaintiffs to
`Arbitrate
`
`We turn finally to Uber’s motion to compel arbitration
`under Section 4 of the FAA.5 While the FAA “creates
`substantive federal law regarding the enforceability of
`arbitration agreements, requiring courts
`to place such
`agreements upon the same footing as other contracts,” Arthur
`Andersen, 556 U.S. at 630 (internal quotation marks and
`citation omitted), it does not “alter background principles of
`state contract law regarding the scope of agreements,” id.
`Those background principles include “doctrines [like estoppel]
`that authorize the enforcement of a contract [against] a
`nonsignatory.” GE Energy Power Conversion France SAS,
`Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637,
`1643 (2020); see also Bouriez v. Carnegie Mellon Univ., 359
`F.3d 292, 294 (3d Cir. 2004); 21 Williston on Contracts § 57:19
`(Richard A. Lord ed., 4th ed. 2001).
`
`Here, the parties agree that the relevant state contract
`law is that of Pennsylvania. Under Pennsylvania law, the
`
`
`4 As we lack jurisdiction to address it on interlocutory
`appeal, we do not opine at this juncture on the issue of
`Plaintiffs’ standing to pursue their ADA claims.
`
` 5
`
` We review de novo the District Court’s decision that
`the arbitration agreement did not bind Plaintiffs as nonparties
`and, like the District Court, draw all reasonable inferences in
`the Plaintiffs’ favor. See Griswold, 762 F.3d at 270.
`
`15
`
`
`
`
`
`
`
`general rule is that “only parties to an arbitration agreement are
`subject to arbitration,” Smay v. E.R. Stuebner, Inc., 864 A.2d
`1266, 1271 (Pa. Super. Ct. 2004), but in some situations,
`“equitable estoppel
`[may] bind non-signatories
`to an
`arbitration clause when the non-signatory knowingly exploits
`the agreement containing the arbitration clause despite having
`never signed the agreement,” Washburn v. N. Health Facilities,
`Inc., 121 A.3d 1008, 1015 (Pa. Super. Ct. 2015) (citing
`DuPont, 269 F.3d at 199). Put differently, where a non-
`signatory “embraces the agreement and directly benefits from
`it,” Bouriez, 359 F.3d at 295, it may not “then turn[] its back
`on the portions of the contract, such as an arbitration clause,
`that it finds distasteful,” DuPont, 269 F.3d at 200. See
`generally Griswold, 762 F.3d at 272 n.6 (observing that
`consistent with the Supreme Court’s decision in Arthur
`Andersen, “we may rely on our prior decisions so long as they
`do not conflict with . . . Pennsylvania state law principles”).
`
`On the other hand, equitable estoppel is inapposite
`where “there is no evidence that the [nonparties] availed
`[themselves] of the . . . agreement or received any benefit
`under that agreement.” Washburn, 121 A.3d at 1015. Where
`enforcement is sought against non-signatories, “[a] dispute that
`arises under one agreement may be litigated notwithstanding a
`mandatory arbitration clause in a second agreement,” even
`where the dispute implicates “two agreements [that] are closely
`intertwined.”6 Bouriez, 359 F.3d at 295 (citation omitted).
`
`
`
`6 This standard is distinct from that governing
`enforcement of an arbitration agreement by a non-signatory
`
`
`16
`
`
`
`
`
`
`
`Applying this precedent, we agree with the District
`
`Court that Uber’s equitable-estoppel argument is meritless.
`Aside from its unreviewable standing-related arguments, Uber
`argues only that “to prove the discrimination they allege,
`Plaintiffs must prove what Uber offers,” which they cannot do
`“without the Terms of Use because Uber makes its services
`available only because of, and pursuant to, the Terms of Use.”
`Appellant’s Br. 41. But that strained argument is belied by the
`complaint, which describes Uber’s “on-demand transportation
`service” without any reference to the Terms of Use, A44
`(capitalization altered), and alleges that Plaintiffs have not
`downloaded Uber’s app, used its service, or otherwise availed
`themselves of any aspect of Uber’s service agreement. Indeed,
`the crux of their claim is that Uber’s unlawful discrimination
`has prevented them from partaking in or benefiting from that
`service agreement in the first place. Thus, as the Ninth Circuit
`put it in rejecting Uber’s estoppel argument in a companion
`case, where “[p]laintiffs do not rely on Uber’s Terms and
`Conditions,” “[n]one of [those terms] is mentioned in the . . .
`complaint, and the only [term] Uber has mentioned is the
`arbitration clause,” it’s apparent that “Plaintiffs’ case arises
`entirely under the ADA.” Namisnak v. Uber Techs., Inc., 971
`F.3d 1088, 1095 (9th Cir. 2020).
`
`
`
`against a signatory. There, the question is whether “there is an
`obvious and close nexus between the non-signatories and the
`contract or the contracting parties,” Elwyn v. DeLuca, 48 A.3d
`457, 463 (Pa. Super. Ct. 2012), often measured in terms of
`“inextricabl[e] entwine[ment]” of the claims with the contract,
`id. We have previously emphasized the importance of this
`distinction and reaffirm it today. See DuPont, 269 F.3d at 202.
`
`17
`
`
`
`
`
`
`
`In sum, because there is no evidence that Plaintiffs
`
`“availed [themselves]” of Uber’s service agreement prior to or
`in the course of litigation or “received any benefit under that
`agreement,” Washburn, 121 A.3d at 1015, they are not
`equitably estopped from rejecting its arbitration clause.
`
`IV. Conclusion
`
`For the foregoing reasons, we will affirm the District
`Court’s order denying the motion to compel arbitration.
`
`18
`
`
`
`
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