Meyer v. Uber Technologies, Inc., 2017 U.S. App. LEXIS 15497

In Oct. 2014 Meyer downloaded the Uber smartphone app on an Android Samsung Galaxy S5, completed registration including credit-card info, and took ~10 rides. The Payment Screen included the text “By creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY” with the capitalized phrase hyperlinked to the Terms.
The Terms of Service contained a mandatory arbitration clause (AAA rules) including class-action waiver and limitation on consolidation.
Meyer sued Travis Kalanick (later joined Uber) alleging the Uber app enabled illegal price-fixing; defendants moved to compel arbitration and the district court denied the motions, finding no reasonably conspicuous notice or unambiguous assent.
Defendants appealed under 9 U.S.C. § 16; the Second Circuit reviewed de novo because the material facts (screenshots, registration flow) were undisputed.
The Second Circuit held the Payment Screen provided reasonably conspicuous notice (spatially and temporally adjacent to the Register button, blue underlined hyperlink, uncluttered screen) and that clicking Register unambiguously manifested assent as a matter of California law.
The court vacated the district court’s denial and remanded for the district court to decide whether defendants waived the right to arbitrate by litigating the case.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an agreement to arbitrate was formed	Meyer: he had no actual notice of the Terms or arbitration clause and did not assent	Defendants: the Payment Screen’s notice and hyperlink put a reasonably prudent smartphone user on inquiry notice; clicking Register manifested assent	Held: Agreement formed — notice reasonably conspicuous and assent unambiguous as a matter of law (California law)
Whether hyperlink-only presentation of terms can give inquiry notice	Meyer: hyperlink buried terms and user would not be on notice	Defendants: hyperlink adjacent to Register is sufficient; users know blue-underlined text denotes links	Held: Hyperlink presentation here was sufficiently conspicuous given spatial/temporal coupling and uncluttered interface
Whether the arbitration clause’s placement within the Terms defeats notice	Meyer: arbitration clause buried within long Terms makes notice inadequate	Defendants: users given clear prompt that registering binds them to linked terms	Held: Placement inside Terms did not defeat notice; once user accessed Terms, dispute-resolution clause was visible and bolded
Whether defendants waived arbitration by litigating	Meyer: defendants actively litigated and thus waived right to arbitrate	Defendants: waiver is procedural defense to be decided by court or arbitrator	Held: Question of waiver is for the district court on remand (not decided by Second Circuit)

Specht v. Netscape Commc'ns Corp., 306 F.3d 17 (2d Cir.) (online assent requires reasonably conspicuous notice and manifestation of assent)
AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (Supreme Court) (FAA favors enforcement of arbitration agreements)
Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (Supreme Court) (arbitration policy and stay/compel framework)
Schnabel v. Trilegiant Corp., 697 F.3d 110 (2d Cir.) (reasonableness of notice judged from perspective of reasonable consumer; inquiry notice doctrine)
Nicosia v. Amazon.com, Inc., 834 F.3d 220 (2d Cir.) (web-interface notice can be fact-intensive; spatial placement matters)
Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir.) (browsewrap enforceability depends on actual or constructive knowledge)
Sgouros v. TransUnion Corp., 817 F.3d 1029 (7th Cir.) (misleading interface can negate notice; buried/obscured terms insufficient)
Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir.) (electronic clicks can signify acceptance when interface gives reasonable notice)