Wu v. Uber Tech., Inc.
43 N.Y.3d 288
NY2024Background
- Plaintiff, Emily Wu, was injured after exiting an Uber in Brooklyn and sued Uber for negligence in November 2020, serving process via the NY Secretary of State.
- Two months after the lawsuit commenced, Uber updated its Terms of Use, including an expanded arbitration agreement, and mass-emailed users, including Wu, explaining the update and requiring consent via an in-app pop-up (clickwrap) to continue using Uber.
- Wu accepted the updated terms by checking a box and tapping “Confirm” when prompted in the app in January 2021.
- Uber asserted the new arbitration agreement retroactively covered Wu’s pending lawsuit and sent a Notice of Intent to Arbitrate.
- Wu moved to stay arbitration, arguing lack of notice and assent regarding retroactive coverage, unconscionability, and a violation of ethical rules barring direct contact with represented parties, while Uber cross-moved to compel arbitration.
- Both the Supreme Court and the Appellate Division sided with Uber, compelling arbitration and holding disputes over the enforceability of the arbitration agreement should be resolved by an arbitrator, not the court, because the agreement included a broad delegation clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity and formation of arbitration agreement | Wu argues she did not assent to retroactive arbitration for pending lawsuits. | Uber contends the clickwrap process objectively secured Wu’s assent. | The clickwrap process created a binding arbitration agreement. |
| Retroactive application to pending litigation | Wu asserts no notice was provided that pending claims would be covered. | Uber argues the terms clearly cover claims accruing before acceptance. | Claims about enforceability of retroactive terms go to the arbitrator. |
| Delegation of arbitrability/enforceability to arbitrator | Wu says key formation and scope questions should be decided by a court. | Uber relies on the express delegation provision in the agreement. | Arbitrator decides enforceability unless the delegation clause is challenged, which Wu did not specifically do. |
| Ethical violation by direct contact with litigant | Wu asserts Uber violated attorney ethics rules by contacting her directly. | Uber claims ignorance of the lawsuit and says the outreach was mass, not targeted. | Lower court’s factual finding upheld; no basis for sanctions or invalidation of agreement. |
Key Cases Cited
- Gilbert v. Burnstine, 255 NY 348 (NY Ct. App. 1931) (New York’s strong public policy in favor of arbitration)
- Matter of Prinze (Jonas), 38 NY2d 570 (NY Ct. App. 1976) (minimal judicial interference in arbitrations)
- Stonehill Capital Mgt. LLC v. Bank of the West, 28 NY3d 439 (NY Ct. App. 2016) (objective manifestation of assent required for contracts)
- Morris v. Snappy Car Rental, 84 NY2d 21 (NY Ct. App. 1994) (contracts accepted without reading are still binding)
- Cobble Hill Nursing Home v. Henry & Warren Corp., 74 NY2d 475 (NY Ct. App. 1989) (courts look at objective manifestations of intent)
- Starke v. Squaretrade, Inc., 913 F.3d 279 (2d Cir. 2019) (clickwrap agreements and notice standards for online contracts)
- Meyer v. Uber Technologies, Inc., 868 F.3d 66 (2d Cir. 2017) (enforceability of Uber’s clickwrap arbitration agreement)