559 F.Supp.3d 1132
S.D. Cal.2021Background
- Plaintiff Drickey Jackson is an Amazon Flex driver who alleges Amazon monitored and intercepted communications in private Facebook groups used by Flex drivers.
- Jackson filed a First Amended Class Action Complaint asserting federal Wiretap Act and Stored Communications Act claims, and California privacy claims (including Cal. Pen. Code §§ 631, 635, intrusion upon seclusion, and state constitutional privacy), seeking class relief.
- Amazon moved to compel individual arbitration under Amazon Flex Terms of Service (TOS), arguing the 2019 TOS applies because it was emailed to drivers and Jackson continued delivering after October 3, 2019; Amazon alternatively relied on the 2016 TOS.
- The central contract issues were whether Jackson assented to the 2019 TOS and, if the 2016 TOS governs, whether its arbitration clause is enforceable given Rittmann (which held Flex drivers are exempt from the FAA and the 2016 TOS arbitration clause lacked a governing state law).
- The Court found Amazon failed to prove Jackson had individualized notice and assent to the 2019 TOS, so the 2016 TOS governs; applied California law to assess arbitration because the FAA did not cover Flex drivers and no state-law choice governed the arbitration clause.
- Applying California law, the Court held Jackson's claims arise independently of his Flex participation and therefore fall outside the 2016 TOS arbitration scope; Amazon’s motion to compel arbitration (and to dismiss/stay) was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which TOS applies (2016 or 2019)? | Jackson: Amazon never provided individualized notice of 2019 TOS; he never assented. | Amazon: emailed 2019 TOS to drivers; Jackson continued performing deliveries after notice, so 2019 TOS applies. | 2016 TOS governs; Amazon did not prove individualized notice/assent to 2019 TOS. |
| Does the FAA/choice-of-law make the 2016 arbitration clause enforceable? | Jackson: Under Rittmann Flex drivers are exempt from the FAA and the 2016 TOS arbitration clause lacks governing state law so is void. | Amazon: Rittmann didn’t consider alternative state law; arbitration is enforceable under California law. | FAA inapplicable (Flex drivers exempt). Court applies California law (CAA) and finds a governing state law may be applied; analysis proceeds under California law. |
| Do Jackson’s claims fall within the 2016 TOS arbitration scope? | Jackson: Claims concern Amazon’s alleged wiretapping of private Facebook posts and do not "arise out of or relate to" the TOS, participation, or services. | Amazon: The alleged monitoring targeted discussions about Flex program matters (pay, deliveries, conditions) and thus relates to participation/performance, so arbitration covers the claims. | Held for Jackson: the alleged intrusions exist independently of the TOS/relationship and do not arise from/relate to his participation or performance, so claims are not arbitrable. |
| Should the Court compel arbitration / dismiss or stay the case? | Jackson: Arbitration not required; claims stay in court. | Amazon: compel arbitration individually; stay or dismiss remaining proceedings. | Denied. Motion to compel arbitration, dismiss, or stay is denied. |
Key Cases Cited
- Rittmann v. Amazon.com, Inc., 971 F.3d 904 (9th Cir. 2020) (Flex drivers exempt from FAA; arbitration clause lacked governing state law, making it unenforceable under that contract language)
- Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (ordinary state-law contract principles govern online assent; inquiry notice standard for online terms)
- Stover v. Experian Holdings, Inc., 978 F.3d 1082 (9th Cir. 2020) (party asserting contract must prove notice and mutual assent to changed online terms)
- In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 1155 (N.D. Cal. 2016) (email plus persistent on‑site notifications can supply individualized notice and assent to updated online terms)
- Long v. Provide Commerce, Inc., 245 Cal. App. 4th 855 (Cal. Ct. App. 2016) (absence of actual notice: assent hinges on whether a reasonably prudent user had inquiry notice of online terms)
- Engalla v. Permanente Med. Grp., Inc., 15 Cal.4th 951 (Cal. 1997) (California policy presumes arbitrability but enforces arbitration agreements under state contract principles)
- Howard v. Goldbloom, 30 Cal. App. 5th 659 (Cal. Ct. App. 2018) (tort claims that exist independently of employment do not fall within broad arbitration clauses covering employment disputes)