Written by Ernesto Mendieta

A District Court in California denied Uber’s motion to arbitrate a TCPA class action claim after the ride-sharing company failed to authenticate the information from its database that allegedly confirmed the arbitration agreement. In Re Uber Text Messaging, No. 4:18-cv-02931, 2019 U.S. Dist. LEXIS 102007 (N.D. Cal. June 18, 2019)

Background

Plaintiffs Wanda Rogers and Christopher Ziers filed a class action lawsuit against Uber in May 2018 in the Northern District of California, claiming that Uber violated the TCPA when it sent them unsolicited text messages, even after they had asked the company to stop. Ziers maintains that he has never used the Uber app, never downloaded it or registered for its services, and therefore never agreed to arbitration.

In December 17, 2018, Uber moved to compel Ziers to arbitrate his claims, arguing that he was contractually obligated to do so since he signed up for the service on June 23, 2016 using a smartphone with the Android operating system. Uber said Ziers even called for a ride on the same day he created his Uber account, although he subsequently cancelled it. According to Uber, because Ziers completed the registration process, he necessarily agreed to Uber’s terms and conditions which include the arbitration clause.

Uber originally supported these claims only with declarations from two of its employees, a paralegal and a software engineer, who described that “Uber’s records showed that Ziers ordered and cancelled a ride on June 23.” The records referred by the two employees were not included with the motion.

Plaintiffs opposed the motion to arbitrate, stating that Uber had not met its burden to prove Ziers agreed to arbitrate all claims. Ziers indicated that he does not recall completing the Uber registration process nor ordering and cancelling a ride. Although Ziers did confirm he had an email from Uber on June 23, 2016 that said “Welcome to Uber,” he did not find any entries from Uber in his billing statements and that he could not have signed up for Uber in 2016 using his phone because the phone he owned at the time “did not allow [him] to download third party apps.”

Uber's Additional Evidence

On February 4, 2019, Uber replied to this objection by producing new documentation that was intended to prove Ziers’ consent. The newly produced information consisted of six documents containing screenshots of entries from Uber’s database, which allegedly show that: (i) Ziers registered for Uber on June 23, (ii) he requested and canceled a ride, and (iii) he provided his card number to Uber.

The Court recognized the lateness of Uber’s filing, and allowed Plaintiffs to file a sur-reply to “avoid the unfairness inherent in this eleventh-hour revelation of what appears to be consequential new information.” Plaintiff’s sur-reply included information obtained from the deposition of Uber’s software engineer employee. Plaintiffs referred to how Uber's software engineer conceded that he did not know where the data was maintained, who maintained the data, who could modify the data, or if he would be able to tell if anyone modified any of the data. Uber’s employee also conceded that he had never seen before the generic screenshots of the user agreement populated with Ziers’s name or unique information. Finally, Ziers also indicated in the sur-reply that he did not have a credit card with the numbers appearing in Uber’s database.

Uber moved to file a supplemental declaration because, in its opinion, Plaintiff’s sur-reply “omitted the most relevant portions” of the engineer’s deposition. However, the court denied this petition by saying that if Uber “had been more forthright in the first place, neither this motion nor Plaintiffs’ sur-reply would have been necessary.”

Decision by the Court

Considering all of the above, the Court noted that Uber “inexplicably” waited until its reply brief to produce the screen shots allegedly supporting its claims that Ziers did agree to the arbitration clause, and also that such documents were inadmissible as evidence because they had not been authenticated. The Court concluded that “[s]nippets from a database, reproduced without any context, explanation, or supporting testimony, are not properly authenticated evidence.”

The Court continued to say that even if such documents had been properly authenticated, there would still be a genuine dispute of material fact regarding the existence of the arbitration agreement, and the motion to compel arbitration would not be granted.

Because Uber bears the burden of proving the existence of the agreement to arbitrate, and all inferences must be drawn in Ziers’s favor, the Court denied the motion to compel arbitration based on the record.

However, the Court was clear that such ruling does not erase the underlying dispute of fact, which is whether Ziers actually agreed to arbitrate all claims or not. For such reasons, the denial was without prejudice, meaning that Uber will be able to refile its motion to move to arbitration, but only after conducting additional discovery.


 

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