United States: Second Circuit Scraps District Court's Denial Of Uber's Motion To Compel Arbitration

On August 17, 2017, the Second Circuit Court of Appeals vacated a district court's denial of Uber's and Mr. Travis Kalanick's motions to compel arbitration in a case involving price-fixing accusations.  In Meyer v. Kalanick, No. 16-2750 (2d Cir. Aug. 17, 2017), the Second Circuit held, as a matter of law, that plaintiff Spencer Meyer received objectively reasonable notice of the terms of service and unambiguously assented by clicking "register" on his smartphone when he signed up to use Uber's services.  The Second Circuit also remanded for consideration of whether Uber and Mr. Kalanick waived the right to compel arbitration by defending the lawsuit.

This was a heavily watched case with amici support on both sides.  The foes of arbitration hoped to use Meyer to call into question the viability of all click-through protocols that many companies use for their terms and conditions, not just Uber.

Background of the Case.  In 2015, Mr. Meyer, on behalf of a putative class of Uber riders, filed an action against Mr. 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.  Uber was subsequently joined as a defendant in 2016.  Uber and Mr. Kalanick filed motions to compel Meyer to arbitrate.  Judge Rakoff of the Southern District of New York denied the motions, concluding that Mr. Meyer did not have reasonably conspicuous notice of the terms of service and did not unambiguously manifest assent to the terms.  See Meyer v. Kalanick, 200 F. Supp. 3d 408, 420 (S.D.N.Y. 2016).  The district court did not reach Meyer's other defenses to arbitration, including whether defendants waived their right to arbitrate by actively participating in the litigation.

The District Court's Determinations Were Subject to De Novo Review.  Plaintiff argued that the Second Circuit was limited to clear-error review of the district court's findings and legal conclusions.  The Second Circuit disagreed, finding that it would review de novo the denial of a motion to compel arbitration.  While factual findings upon which a conclusion was based would be reviewed for clear error, the facts in Meyer were undisputed.

Beyond "Clickwrap" and "Browsewrap." The court discussed web-based contracts, noting that it had previously distinguished web-based contracts as either "clickwrap" or "browsewrap" agreements.  "Clickwrap" agreements, which courts routinely uphold, require a user to click an "I agree" box after being presented with the terms and conditions of use.  "Browsewrap" agreements, on the other hand, generally post terms and conditions on a website via a hyperlink at the bottom of the screen.  Because no affirmative action is required in "browsewrap" agreements, the determination of the validity of these agreements depends on whether the user has actual or constructive knowledge of the terms and conditions.  The Second Circuit noted, however, that not all interfaces would fit neatly into the "clickwrap" or "browsewrap" categories.  As such, classification of web-based contracts would not resolve the notice inquiry.

  The Parties Mutually Assented to the Agreement.  Under California law, the Second Circuit considered whether the undisputed facts established that there was: (1) reasonably conspicuous notice of the existence of contract terms; and (2) unambiguous manifestation of assent to those terms.  Analyzing Uber's agreement, the court found both requirements were established.

In analyzing the first requirement, the court considered "the perspective of a reasonably prudent smartphone user."  Looking at the interface at issue in the case, the court concluded that the design of the screen and language used rendered the notice provided reasonable as a matter of law.  First, the registration payment screen was uncluttered.  The text on that screen advised Uber users that "By creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY."  This text, along with a hyperlink to the terms of service, appeared directly below the buttons for registration.  Even more, the entire screen was visible without scrolling.  Finally, although the text was in a small font, its dark print contrasted with the bright white background, and the hyperlinks were in blue and underlined.

The court also found that the fact that the terms of service were available by hyperlink did not preclude a determination of reasonable notice because the hyperlinked text was reasonably conspicuous.  Additionally, the court disagreed with the district court's determination that the location of the arbitration clause within the terms of service was itself a "barrier to reasonable notice."  Accordingly, the Uber App provided reasonably conspicuous notice as a matter of law.

In analyzing the second requirement, the court found that although Meyer's assent to arbitration was not express, it was unambiguous in light of the objectively reasonable notice of the terms.  A reasonable user would know that, by clicking the registration button, he or she was agreeing to the terms and conditions accessible via the hyperlink.  Plaintiff argued that the fact that clicking the register button had two functions—creation of a user account and assent to the terms of service—rendered plaintiff's assent ambiguous.  The court disagreed.  The physical proximity of the notice  regarding the terms of service to the register button made clear to a user that the linked terms pertained to the action the user was about to take.

The court concluded that, as a matter of law, Meyer agreed to arbitrate his claims with Uber.

The District Court Would Decide the Issue of Waiver.  Plaintiff argued in the alternative that defendants waived their right to arbitrate by actively litigating the underlying lawsuit.  Although a defense of waiver would normally be decided by the arbitrator, the court found that, here, the district court could properly decide the question because defendants had participated in litigation.  As such, the court remanded the case to the district court to consider whether defendants had waived their right to arbitrate.

The court's decision signals what factors at least one Court of Appeal will consider in determining the validity of consent in hybrid agreements—those agreements that don't fall expressly into the "clickwrap" or "browsewrap" categories.  It also confirms the validity of the electronic registration process used by Uber and many other companies.

Request to amend its opinion denied.  On Tuesday, August 29, 2011, the Second Circuit denied Plaintiff's motion to have the Second Circuit amend its August 17, 2017 opinion.  Plaintiff requested that the Second Circuit include language in its opinion stating that the district court could consider the extent to which Plaintiff may have been unable to see Uber's Terms of Service hyperlink (an argument made by plaintiff in Metter v. Uber Technologies, Inc., Case No. 3:16-cv-06652-RS).  The Court denied the motion without prejudice to Plaintiff raising the issue in the district court in the first instance.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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