Spencer Meyer, Individually and on behalf of those similarly situated, Plaintiff-Counter-Defendant-Appellee,
Uber Technologies, Inc., Defendant-Counter-Claimant-Appellant, Travis Kalanick, Defendant-Appellant, Ergo, Third-Party Defendant.
Argued: March 24, 2017
Appeal from the United States District Court for the Southern
District of New York
putative class action filed in the United States District
Court for the Southern District of New York (Rakoff,
J.), a user of a technology company's car
service smartphone application alleges that the company and
its former chief executive engaged in illegal price fixing.
Defendants moved in the district court to compel arbitration,
contending that the user agreed to a mandatory arbitration
provision in the company's terms of service when he
registered for an account using the application. The district
court denied the motions. In these consolidated appeals,
defendants contend, inter alia, that the district
court erred in concluding that the notice of the Terms of
Service was not reasonably conspicuous and that the user did
not unambiguously manifest assent to the arbitration
provision by registering for an account.
Jeffrey A. Wadsworth (Brian Marc Feldman, Edwin Michael
Larkin, III, Gregory M. Dickinson, on the brief), Harter
Secrest & Emery LLP, Rochester, New York, and Bryan L.
Clobes, Ellen Meriwether, Cafferty Clobes Meriwether &
Sprengel LLP, Philadelphia, Pennsylvania, and Matthew L.
Cantor, Ankur Kapoor, Constantine Cannon LLP, New York, New
York, for Plaintiff- Counter-Defendant-Appellee Spencer
Theodore J. Boutrous Jr. (Daniel G. Swanson, Cynthia E.
Richman, Joshua S. Lipshutz, Reed Brodsky, on the brief),
Gibson, Dunn & Crutcher LLP, Los Angeles, California,
Washington, D.C., and New York, New York, for
Defendant-Counter-Claimant- Appellant Uber Technologies, Inc.
L. Dunn, William A. Isaacson, Ryan Y. Park, Peter M. Skinner,
Boies, Schiller & Flexner LLP, Washington, D.C. and New
York, New York, for Defendant-Appellant Travis Kalanick.
Jonathan D. Selbin, Jason L. Lichtman, Lieff Cabraser,
Heimann & Bernstein, LLP, New York, New York, and Jahan
Sagafi, Paul W. Mollica, Outten & Golden LLP, San
Francisco, California and Chicago, Illinois, for Amicus
Curiae Public Justice, P.C.
Alexander H. Schmidt, Wolf Haldenstein Adler Freeman &
Herz LLP, New York, New York, for Amici Curiae Law
F. Morgan, Mark L. Hejinian, Skye D. Langs, Coblentz Patch
Duffy and Bass LLP, San Francisco, California, for Amici
Curiae Internet Association and Consumer Technology
Comerford Todd, Warren Postman, U.S. Chamber Litigation
Center, Washington, D.C., and Andrew J. Pincus, Evan M.
Tager, Archis A. Parasharami, Mayer Brown LLP, Washington,
D.C., for Amicus Curiae The Chamber of Commerce of the United
States of America.
Before: Raggi, Chin, and Carney, Circuit Judges.
2014, plaintiff-counter-defendant-appellee Spencer Meyer
downloaded onto his smartphone a software application offered
by defendant-counter-claimant-appellant Uber Technologies,
Inc. ("Uber"), a technology company that operates,
among other things, a ride-hailing service. Meyer then
registered for an Uber account with his smartphone. After
using the application approximately ten times, Meyer brought
this action on behalf of himself and other similarly situated
Uber accountholders against Uber's co-founder and former
Chief Executive Officer, defendant-appellant Travis Kalanick,
alleging that the Uber application allows third-party drivers
to illegally fix prices. The district court joined Uber as a
defendant and denied motions by Kalanick and Uber to compel
arbitration. In doing so, the district court concluded that
Meyer did not have reasonably conspicuous notice of and did
not unambiguously manifest assent to Uber's Terms of
Service when he registered. The district court held that
Meyer therefore was not bound by the mandatory arbitration
provision contained in the Terms of Service.
reasons set forth below, we vacate and remand for further
proceedings consistent with this opinion.
facts are undisputed and are summarized as follows: Uber
offers a software application for smartphones (the "Uber
App") that allows riders to request rides from
third-party drivers. On October 18, 2014, Meyer registered
for an Uber account with the Uber App on a Samsung Galaxy S5
phone running an Android operating system. After registering,
Meyer took ten rides with Uber drivers in New York,
Connecticut, Washington, D.C., and Paris.
support of its motion to compel arbitration, Uber submitted a
declaration from Senior Software Engineer Vincent Mi, in
which Mi represented that Uber maintained records of when and
how its users registered for the service and that, from his
review of those records, Mi was able to identify the dates
and methods by which Meyer registered for a user account.
Attached to the declaration were screenshots of the two
screens that a user registering in October 2014 with an
Android-operated smartphone would have seen during the
first screen, at which the user arrives after downloading the
application and clicking a button marked "Register/ is
labeled "Register" and includes fields for the user
to enter his or her name, email address, phone number, and a
password (the "Registration Screen"). The
Registration Screen also offers the user the option to
register via a Google or Facebook account. According to
Uber's records, Meyer did not sign up using either
Google or Facebook and would have had to enter manually his
completing the information on the Registration Screen and
clicking "Next, " the user advances to a second
screen labeled "Payment" (the "Payment
Screen"), on which the user can enter credit card
details or elect to make payments using PayPal or Google
Wallet, third-party payment services. According to Uber's
records, Meyer entered his credit card information to pay for
rides. To complete the process, the prospective user must
click the button marked "REGISTER" in the middle of
the Payment Screen.
the input fields and buttons on the Payment Screen is black
text advising users that "[b]y creating an Uber account,
See Addendum B. The capitalized phrase, which is
bright blue and underlined, was a hyperlink that, when
clicked, took the user to a third screen containing a button
that, in turn, when clicked, would then display the current
version of both Uber's Terms of Service and Privacy
Policy. Meyer recalls entering his contact
information and credit card details before registering, but
does not recall seeing or following the hyperlink to the
Terms and Conditions. He declares that he did not read the
Terms and Conditions, including the arbitration provision.
Meyer registered for an account, the Terms of Service
contained the following mandatory arbitration clause:
You and Company agree that any dispute, claim or controversy
arising out of or relating to this Agreement or the breach,
termination, enforcement, interpretation or validity thereof
or the use of the Service or Application (collectively,
"Disputes") will be settled by
binding arbitration, except that each party retains the right
to bring an individual action in small claims court and the
right to seek injunctive or other equitable relief in a court
of competent jurisdiction to prevent the actual or threatened
infringement, misappropriation or violation of a party's
copyrights, trademarks, trade secrets, patents or other
intellectual property rights. You acknowledge and
agree that you and Company are each waiving the right to a
trial by jury or to participate as a plaintiff or class User
in any purported class action or representative
proceeding. Further, unless both you and Company
otherwise agree in writing, the arbitrator may not
consolidate more than one person's claims, and may not
otherwise preside over any form of any class or
representative proceeding. If this specific paragraph is held
unenforceable, then the entirety of this "Dispute
Resolution" section will be deemed void. Except as
provided in the preceding sentence, this "Dispute
Resolution" section will survive any termination of this
Appellants' App. at 111-12. The Terms of Service further
provided that the American Arbitration Association
("AAA") would hear any dispute, and that the AAA
Commercial Arbitration Rules would govern any arbitration
The District Court Proceedings
December 16, 2015, Meyer, on behalf of a putative class of
Uber riders, filed this action against Kalanick, alleging
that the Uber App allows drivers to fix prices amongst
themselves, in violation of the Sherman Act, 15 U.S.C. §
1, and the Donnelly Act, N.Y. Gen. Bus. Law § 340. Meyer
amended his complaint on January ...