Cullinane v. Uber Techs., Inc.

• Citation: 893 F.3d 53
• Decision Date: 25 June 2018
• Docket Number: No. 16-2023,16-2023
• Parties: Rachel CULLINANE, Jacqueline Núñez, Elizabeth Schaul, and Ross McDonagh, on behalf of themselves and all others similarly situated, Plaintiffs, Appellants, v. UBER TECHNOLOGIES, INC., Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

893 F.3d 53

Rachel CULLINANE, Jacqueline Núñez, Elizabeth Schaul, and Ross McDonagh, on behalf of themselves and all others similarly situated, Plaintiffs, Appellants,

v.UBER TECHNOLOGIES, INC., Defendant, Appellee.

No. 16-2023

United States Court of Appeals, First Circuit.

June 25, 2018

Matthew W.H. Wessler, with whom Matthew Spurlock, Gupta Wessler PLLC, John Roddy, Elizabeth Ryan, and Bailey & Glasser LLP, Boston, MA, were on brief, for appellants.

S. Elaine McChesney, with whom Lawrence T. Stanley, Jr., Emma D. Hall, and Morgan, Lewis & Bockius LLP, Boston, MA, were on brief, for appellee.

Jennifer D. Bennett, Palo Alto, CA, Public Justice, P.C., Jonathan D. Selbin, Jason L. Lichtman, New York, NY, Andrew R. Kaufman, Philadelphia, PA, Lieff Cabraser Heimann & Bernstein, LLP, Jahan Sagafi, San Francisco, CA, Paul W. Mollica, Outten & Golden LLP, Chicago, IL, Stuart Rossman, and National Consumer Law Center, Boston, MA, on brief for amicus curiae Public Justice P.C., and National Consumer Law Center in support of appellants.

Ben Robbins, Martin J. Newhouse, and New England Legal Foundation, Boston, MA, on brief for amicus curiae New England Legal Foundation in support of appellee.

Andrew J. Pincus, Archis A. Parasharami, Daniel E. Jones, Karianne M. Jones, Mayer Brown LLP, Washington, DC, Kate Comerford Todd. Warren Postman, and U.S. Chamber Litigation Center, on brief for amicus curiae the Chamber of Commerce of the United States of America in support of appellee.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

TORRUELLA, Circuit Judge.

This case concerns the enforceability of an arbitration clause contained in an online contract. Plaintiffs-Appellants Rachel Cullinane, Jacqueline Núñez, Elizabeth Schaul, and Ross McDonagh, (collectively, "Plaintiffs"), filed this putative class action in Massachusetts Superior Court on behalf of themselves and other users of a ride-sharing service in the Boston area against Defendant-Appellee Uber Technologies, Inc. ("Uber"). In their complaint, Plaintiffs alleged that Uber violated a Massachusetts consumer-protection statute by knowingly imposing certain fictitious or inflated fees. Uber removed the case to the United States District Court for the District of Massachusetts, and filed a motion to compel arbitration and stay or dismiss the case. The district court granted Uber's motion to compel arbitration and dismissed the complaint. For the reasons explained below, we reverse and remand.

I. Background

Because Uber's motion to compel arbitration was made in connection with a motion to dismiss or stay, we draw the relevant facts from the operative complaint and the documents submitted to the district court in support of the motion to compel arbitration. Gove v. Career Sys. Dev. Corp., 689 F.3d 1, 2 (1st Cir. 2012).

A. Factual Background

Uber provides a ride-sharing service that transports customers throughout some cities, including Boston, for a fee. Uber licenses the Uber mobile application (the "Uber App") to the public so that users may request transportation services from independent third party providers in the users' local area. To be able to request and pay for third party transportation services, Uber App users must first register with Uber by creating an account. At the time Plaintiffs created their accounts, prospective users could either register through the Uber App or register directly through Uber's website.

All four named Plaintiffs downloaded the Uber App on iPhones and used the Uber App to create Uber accounts between December 31, 2012 and January 10, 2014. On September 13, 2013, Plaintiff Jacqueline Núñez ("Núñez") used the Uber App to order transportation to Boston Logan International Airport ("Logan Airport") and was charged, in addition to the cost of the transportation, $8.75 for a Massport Surcharge & Toll¹ (the "Massport Surcharge"). Plaintiff Rachel Cullinane ("Cullinane") used the Uber App to request transportation from Logan Airport on June 29, 2014, and was charged $5.25 for the East Boston toll² and the same $8.75 Massport Surcharge. Plaintiff Elizabeth Schaul ("Schaul") used the Uber App to obtain transportation both to and from Logan Airport on multiple occasions. Each time, Uber charged her the $8.75 Massport Surcharge. The last named Plaintiff, Ross McDonagh ("McDonagh") claims he used the Uber App for several trips—not all of them to or from Logan Airport—and was charged $5.25 for the East Boston toll and the $8.75 surcharge, even when he did not travel to or from Logan Airport. The Plaintiffs object to the Massport Surcharge and the East Boston tool because they maintain that Uber charged these fees unnecessarily (i.e. there was no requirement from the Commonwealth of Massachusetts that these fees be charged to Uber passengers). Now, the Plaintiffs seek to represent a class of Massachusetts-resident Uber passengers who have been charged the Massport Surcharge and East Boston toll, and have not received a refund for these charges.

B. Uber App Registration Process

All prospective Uber passengers must go through Uber's registration process. When Plaintiffs used the Uber App to register, the process included three different screens that asked for user information. The first screen, titled "Create an Account," asked users to enter an e-mail address, a mobile phone number, and a password for the account. Immediately above the phone's keyboard—which occupied half of the phone screen—written in dark gray against a black background, was the text: "We use your email and mobile number to send you ride confirmations and receipts."

The second screen, entitled "Create a Profile," prompted the user to enter their first and last name, and to upload a picture. This screen also included dark gray text on a black background which read: "Your name and photo helps [sic] your driver identify you at pickup."

The third screen varied slightly during the thirteen-month period during which the Plaintiffs registered. The first two plaintiffs to register, Núñez and Schaul, saw a third screen titled "Link Card." The last two plaintiffs to register, Cullinane and McDonagh, saw a third screen titled "Link Payment." Irrespective of its title, the third and final screen prompted the user to enter the appropriate payment information for Uber's services. Because the design and content of both versions of the third screen are particularly relevant to this case, we discuss them in greater detail.

1. "Link Card"

When confronted with the third screen, Núñez and Schaul were presented with the "Link Card" screen. This is what it looked like:³

As depicted in the screenshot above, the screen contained a thick gray bar at the top of the screen with the title "Link Card." To the left of the title was a "CANCEL" button and to the right was an inoperative and barely visible "DONE" button. Below the thick gray title bar was a blank text field where users could enter their credit card information. The blank text field was white, contrasting with the black background, horizontally traversing the screen, and included some light gray numbers to exemplify the type of information required. In addition, at the beginning of the blank text field, and to the left of the light gray numbers, there was an icon representing a credit card. The "Link Card" screen automatically included a number pad, covering half of the screen, for users to type their credit card information into the blank text field.

The screen also included text, just below the blank text field, that instructed users to "scan your card" and "enter promo code." This text was written in light gray bolded font. The "scan your card" text had a bright blue camera icon to its left, and the "enter promo code" had a bright blue bullet-shaped icon enclosed in a circle. The record is unclear as to whether the "scan your card" and "enter promo code" texts were clickable buttons.⁴

Finally, the "Link Card" screen also included dark gray text which read: "By creating an Uber account, you agree to the." Below this text was the phrase "Terms of Service & Privacy Policy" in bold white text enclosed in a gray rectangle.

According to Uber, this rectangular box indicated that this phrase was a "clickable button."

2. "Link Payment"

Plaintiffs Cullinane and McDonagh confronted a third screen that looked like this:

The "Link Payment" screen was very similar to the "Link Card" screen, except that it provided for an additional payment option that altered the screen's initial presentation. Instead of a blank text field for credit card information and the aforementioned number pad, the "Link Payment" screen displayed the blank text field and a large blue button with the PayPal logo.⁵ The blue PayPal button was located immediately below a centralized dark gray text reading "OR," indicating the existence of two payment options. Below the PayPal button, at the bottom of the screen, the texts "[b]y creating an Uber account you agree to the" and "Terms of Service & Privacy Policy" were presented in the same manner as previously described.

If the user selected the blank text field to input his or her credit card information, the user would then "engage[ ] the keyboard" and the "Link Payment" screen would resemble the "Link Card" screen.

Notwithstanding the differences in the third screen, the design and general mechanics of the Uber App interface remained fairly uniform. For example, all screens included a gray bar at the top. Within this bar the user was presented with the screen title written in capital letters in a dark colored font. Below the title, but within the gray bar, was an illustration of three circles connected by a green line. These circles indicated the user's progress through Uber's registration process.

In addition, on all screens, the gray bar incorporated two buttons: one to the left and one to the right of the screen's title.

The left button was a "CANCEL" button, written in all capital letters. This button was enabled throughout the registration process,...