RACHEL CULLINANE, JACQUELINE NÚÑEZ, ELIZABETH SCHAUL, and ROSS MCDONAGH, on behalf of themselves and all others similarly situated, Plaintiffs, Appellants,
UBER TECHNOLOGIES, INC., Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge]
Matthew W.H. Wessler, with whom Matthew Spurlock, Gupta
Wessler PLLC, John Roddy, Elizabeth Ryan, and Bailey &
Glasser LLP were on brief, for appellants.
Elaine McChesney, with whom Lawrence T. Stanley, Jr., Emma D.
Hall, and Morgan, Lewis & Bockius LLP were on brief, for
Jennifer D. Bennett, Public Justice, P.C., Jonathan D.
Selbin, Jason L. Lichtman, Andrew R. Kaufman, Lieff Cabraser
Heimann & Bernstein, LLP, Jahan Sagafi, Paul W. Mollica,
Outten & Golden LLP, Stuart Rossman, and National
Consumer Law Center, on brief for amicus curiae Public
Justice P.C., and National Consumer Law Center in support of
Robbins, Martin J. Newhouse, and New England Legal
Foundation, on brief for amicus curiae New England Legal
Foundation in support of appellee.
J. Pincus, Archis A. Parasharami, Daniel E. Jones, Karianne
M. Jones, Mayer Brown LLP, 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.
Torruella, Thompson, and Kayatta, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
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.
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).
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.
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 & Toll  (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
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.
Uber App Registration Process
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
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."
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.
confronted with the third screen, Nunez and Schaul were
presented with the "Link Card" screen. This is what
it looked like:
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
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" ...