UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LAUREL HILBERT,

Plaintiff, Civil Action No. 24-00584 (AHA) v.

UBER TECHNOLOGIES, INC., et al.,

Defendants.

Memorandum Opinion

Plaintiff Laurel Hilbert brought this action against Defendant Uber Technologies, Inc., and

two subsidiaries alleging violations of federal and state law for discriminating against customers

who are visually impaired and rely on service animals. Defendants have moved to compel

arbitration and stay this action pursuant to the Federal Arbitration Act,

et seq. Because

the Act and governing precedent mandate arbitration, the Court grants the motion.

I. Background

Uber provides ride-share services to the general public. ECF No. 3 ¶ 34. Defendant Rasier,

LLC, is an Uber subsidiary that holds many of the licenses required for Uber’s operations.

.

Defendant Drinnen, LLC, is an Uber subsidiary that holds a permit to operate as a digital dispatch

company in D.C.

.

Plaintiff Hilbert is visually impaired and a frequent ride-share consumer.

¶¶ 32–33. The

operative complaint describes several incidents in which Hilbert was denied an Uber ride due to

his use of a service dog.

¶¶ 53–69. Hilbert has reported these refusals of service through Uber’s “safety line” but has not received any information concerning the steps the company is taking to

remedy this recurring problem.

.

According to a declaration submitted by Defendants, Hilbert created an Uber rider account

in November 2018. ECF No. 13-2 ¶ 6. In doing so, he agreed to terms of use that had taken effect

in December 2017.

; see ECF No. 13-3. Hilbert later agreed to revised terms of use in

November 2022 and in January 2023. ECF No. 13-2 ¶¶ 13, 15; see ECF Nos. 13-4, 13-7.

On both occasions, the process for assenting to the terms of use was similar. ECF No. 13-

2 ¶ 15. In the Uber app, Hilbert was presented with a “blocking pop-up screen”—meaning a screen

that he could not proceed past without taking some action.

. The pop-up screen stated:

“We’ve updated our terms” and “We encourage you to read our updated Terms in full.” Id.; see

ECF No. 13-5. The phrases “Terms of Use” and “Privacy Notice” appeared below that message

and were displayed in blue, underlined text to denote hyperlinks. ECF No. 13-2 ¶ 12; see ECF No.

13-5. Those hyperlinks directed the user to the terms of use and the privacy notice. ECF No. 13-2

¶ 12. The pop-up screen also included a checkbox next to this phrase: “By checking the box, I have

reviewed and agree to the Terms of Use and acknowledge the Privacy Notice.”

; see ECF

No. 13-5. Below that phrase was a button labeled “Confirm.” ECF No. 13-2 ¶ 13; see ECF No. 13-

5. Uber riders could not move past the pop-up screen to use the app unless they checked the box

and clicked the “Confirm” button. ECF No. 13-2 ¶ 13. Uber’s records reflect that Hilbert did that

in November 2022 and January 2023.

; see ECF No. 13-6.

The terms of use included an arbitration agreement. As relevant here, the 2023 terms of

use provide:

[A]ny dispute, claim, or controversy in any way arising out of or relating to (i) these Terms and prior versions of these Terms, or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof; [and] (ii) your access to or use of the

2 Services at any time . . . will be settled by binding individual arbitration between you and Uber, and not in a court of law.

ECF No. 13-7 § 2(a)(1). The agreement also states:

Only an arbitrator . . . shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including without limitation any claim that all or any part of this Arbitration Agreement is void or voidable. An arbitrator shall also have exclusive authority to resolve all threshold arbitrability issues, including issues relating to whether these Terms are applicable, unconscionable, or illusory and any defense to arbitration, including without limitation waiver, delay, laches, or estoppel.

Id. § 2(a)(4).

Hilbert filed this action on February 29, 2024. He seeks to represent a putative class of “all

blind or visually disabled individuals who use service animals and who have attempted to access

or been deterred from attempting to access or from accessing Uber transportation services in whole

or in part because they use a service animal.” ECF No. 3 ¶ 78. Hilbert brings claims under the

Americans with Disabilities Act, the D.C. Human Rights Act, and the D.C. Consumer Protection

Procedures Act. Id. ¶¶ 84–137.

Defendants have moved to compel arbitration and to stay these proceedings until

arbitration has concluded. ECF No. 13.

II. Legal Standard

The Federal Arbitration Act (“FAA”) provides that a contractual provision requiring

arbitration “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or

in equity for the revocation of any contract.”

. The Supreme Court has instructed that

this provision reflects “a liberal federal policy favoring arbitration” and that “courts must place

arbitration agreements on an equal footing with other contracts and enforce them according to their

terms.” AT&T Mobility LLC v. Concepcion,

, 339 (2011) (quotation marks and

3 citation omitted). Moreover, “any doubts concerning the scope of arbitrable issues should be

resolved in favor of arbitration.” Wolff v. Westwood Mgmt., LLC,

(D.C. Cir.

2009) (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp.,

, 24–25

(1983)). “When a district court finds that a lawsuit involves an arbitrable dispute, and a party

requests a stay pending arbitration, § 3 of the FAA compels the court to stay the proceeding.”

Smith v. Spizzirri,

, 478 (2024).

The Court evaluates a motion to compel arbitration “as if it were a request for summary

disposition of the issue of whether or not there had been a meeting of the minds on the agreement

to arbitrate.” Gambo v. Lyft, Inc.,

, 52 (D.D.C. 2022) (quoting Aliron Int’l, Inc.

v. Cherokee Nation Indus., Inc.,

(D.C. Cir. 2008)). “Because the party seeking

to enforce an arbitration agreement bears the burden of proving that the other party agreed to

arbitrate, the party seeking to compel arbitration must first present evidence sufficient to

demonstrate an enforceable agreement to arbitrate.”

(quoting Osvatics v. Lyft, Inc.,

, 9 (D.D.C. 2021)). “The burden then shifts to the non-moving party to raise a genuine issue

of material fact as to the making of the agreement, using evidence comparable to that identified in

Rule 56.”

(quoting Osvatics, 535 F. Supp. 3d at 9). “The court must grant summary judgment

with respect to the formation of an arbitration agreement if the pleadings and evidence show that

there is no genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law.” Id. (quoting Osvatics, 535 F. Supp. 3d at 9). “But if the Court concludes that

a ‘genuine dispute of material fact exists as to the making of the arbitration agreement, including

whether the parties assented to the agreement,’ the case must ‘proceed summarily to trial solely on

the issue of arbitrability.’” Id. (quoting Jin v. Parsons Corp.,

(D.C. Cir. 2020)).

4 III. Discussion

Hilbert does not dispute that he checked the box indicating his review of and agreement to

the contract containing the arbitration clause, and that he further clicked “Confirm.” He argues that

the arbitration clause should not be enforced because Defendants cannot show that he would have

received sufficient notice as a visually impaired user. Hilbert further argues that, even if the notice

was adequate, any agreement to arbitrate was rendered illusory by Uber’s ability to unilaterally

modify the agreement. Under governing precedent, neither argument prevails.

A. The Parties Formed An Agreement To Arbitrate

“Because arbitration is a contractual matter, [the Court] must first determine whether the

parties have agreed to arbitrate by looking to state contract law.” Selden v. Airbnb, Inc.,

(D.C. Cir. 2021). The parties agree that D.C. law governs the inquiry. ECF No. 13 at 7;

ECF No. 15 at 8. And under D.C. law, “[a] contract is formed when there is an offer, an acceptance,

and valuable consideration exchanged between the parties.” Osvatics, 535 F. Supp. 3d at 10

(alteration in original) (quotation marks and citation omitted). The parties must “express[] an intent

to be bound, agree[] to all material terms, and assume[] mutual obligations sufficient to create an

enforceable contract.” Id. (alterations in original) (citation omitted).

Defendants have met their initial burden to show that the elements of contract formation

were satisfied with respect to the arbitration provision. See id. at 10–11 (holding that defendant

satisfied initial burden where plaintiff agreed to terms of service in exchange for access to Lyft

application). Hilbert has not satisfied his burden to show a genuine dispute of material fact as to

the formation of the arbitration agreement. He does not deny that he checked the box and clicked

“Confirm” on the pop-up screen. Instead, Hilbert maintains that because he relies on VoiceOver,

a screen reading technology, “in all likelihood Uber’s app failed to make him aware of its terms of

use and to make him aware of the effect of clicking on any box or button that he clicked.” ECF

5 No. 15 at 11. He suggests that he would have been informed only of the existence of a “box” or

“button” and that he simply clicked it to move to the next screen. Id. at 12.

Defendants have rebutted these assertions in a declaration affirming that VoiceOver would

have read aloud the relevant information on the pop-up screen. ECF No. 17-1. Specifically, it

would have read aloud: “We’ve updated our terms” and “We encourage you to read our updated

Terms in full.” Id. ¶ 8. It also would have read aloud the “Terms of Use” and “Privacy Notice”

hyperlinks, and it would have read aloud the phrase, “By checking the box, I have reviewed and

agree to the Terms of Use and acknowledge the Privacy Notice.” Id. ¶¶ 8–9. Finally, it would have

read aloud the “Confirm” button. Id. ¶ 9. Defendants have further submitted video evidence of

VoiceOver operating in this fashion. See ECF No. 17-2. Hilbert has not rebutted this evidence.

Hilbert contests that he received actual notice, saying he has no recollection of hearing this

information read aloud, and challenges whether the “Terms of Use” hyperlink would have been

sufficiently conspicuous even for a user who was not visually impaired. ECF No. 15 at 14–16; see

ECF No. 15-1 ¶ 12. Under D.C. law, however, it is sufficient for Defendants to show inquiry

notice. See Gambo, 642 F. Supp. 3d at 55 (“[A]bsent fraud or mistake, one who signs a contract is

bound by a contract which he has an opportunity to read whether he does so or not.” (quoting

Forrest v. Verizon Commc’ns, Inc.,

(D.C. 2002))). And courts have upheld

arbitration agreements in circumstances comparable to those here. See, e.g., Walker v. Uber Techs.,

Inc., --- F. Supp. 3d ---, ---, No. 23-cv-3796,

, at *5 (D.D.C. Sept. 11, 2024)

(enforcing agreement based on same pop-up screen), appeal filed, No. 24-7154 (D.C. Cir. Oct. 11,

2024); Good v. Uber Techs., Inc.,

, 277–83 (Mass. 2024) (same); see also, e.g.,

Selden, 4 F.4th at 156–57 (enforcing agreement where terms and policies appeared in red text and

were hyperlinked to the full policies, and the notice was “clearly legible, appropriately sized, and

6 unobscured by other visual elements” (citation omitted)); Gambo, 642 F. Supp. 3d at 55 (finding

even clearer evidence of assent than in Selden because the user was required to click a box next to

the phrase, “I understand and agree to Lyft’s Terms of Service and Privacy Policy”). This includes

circumstances where plaintiffs with visual impairment were provided notice and the opportunity

to access the terms of an arbitration agreement. See Roberts v. Uber Techs., Inc., No. 23-CV-

00545,

, at *2–3 (W.D. Tex. Aug. 8, 2023) (rejecting plaintiff’s argument that,

because he was blind, he did not have reasonable notice of clickwrap arbitration agreement); cf.

Saizhang Guan v. Uber Techs., Inc.,

(E.D.N.Y. 2017) (“[E]ven when the

failure to read the contract is attributable to the party’s inability to read or understand the language

in which the contract is written, the party is still bound by his or her assent.”); Pyles v. HSBC Bank

USA, N.A.,

(D.C. 2017) (“While appellant may have chosen to sign the contracts

as she was going off to work, no allegation is made that she had no other choice than to sign at that

point. Her signature on the documents must constitute assent unless it was obtained by fraud.”). 1

B. Whether The Agreement Is Illusory Is A Question For The Arbitrator

Hilbert also argues that, even if he agreed to the contract containing the arbitration clause,

any such agreement is invalid because Uber retained the right to unilaterally modify the contract,

rendering it illusory. ECF No. 15 at 19–20. Hilbert cites a provision in the terms of use that allows

Uber to “modify these Terms or its policies relating to the Services at any time, effective upon

posting of an updated version of these Terms through the Services or Uber’s website.” ECF No.

1 The present case differs from one in which a defendant attempts to enforce an arbitration clause that the plaintiff was never informed of and “had no way of accessing,” defeating any actual or constructive notice. See Nat’l Fed’n of the Blind v. The Container Store, Inc.,

, 83–84 (1st Cir. 2018) (declining to enforce an arbitration clause where there was “‘zero hint’ that terms and conditions (specifically, an arbitration agreement) applied to the in-store-plaintiffs’ enrollment in the loyalty program”).

7 13-7 § 1. Because there are no limitations on Uber’s ability to modify terms, Hilbert argues, the

agreement to arbitrate is illusory. ECF No. 15 at 20. According to Hilbert, the Court should

adjudicate the question of whether the arbitration clause is illusory and find it so.

This argument is foreclosed by precedent. The Supreme Court has held that the FAA

“allows parties to agree by contract that an arbitrator, rather than a court, will resolve threshold

arbitrability questions as well as underlying merits disputes.” Henry Schein, Inc. v. Archer & White

Sales, Inc.,

(2019). Moreover, “[w]hen the parties’ contract delegates the

arbitrability question to an arbitrator, a court may not override the contract.”

. “In those

circumstances, a court possesses no power to decide the arbitrability issue.”

Here, it is

undisputed that the agreement provides that the arbitrator “shall . . . have exclusive authority to

resolve all threshold arbitrability issues, including issues relating to whether these Terms are

applicable, unconscionable, or illusory.” ECF No. 13-7 § 2(a)(4). Accordingly, any argument that

the agreement’s terms are illusory must be resolved by the arbitrator. See also Walker, --- F. Supp.

3d at ---,

, at *5 (holding that question whether arbitration agreement was

unconscionable had to be resolved by arbitrator rather than court). 2

IV. Conclusion

For the foregoing reasons, Defendants’ motion to compel arbitration and stay these

proceedings is granted. This action is stayed pending the completion of arbitration. The parties are

directed to file a joint status report advising the Court of the status of arbitration within 90 days of

this opinion and every 90 days thereafter.

A separate order consistent with this decision accompanies this memorandum opinion.

2 The Court need not reach Defendants’ alternative argument that the agreement is not illusory because Uber had the power to make only prospective, rather than retroactive, modifications. ECF No. 17 at 6.

8 AMIR H. ALI United States District Judge

Date: January 7, 2025

9