## Facts

- Spencer Meyer registered for an Uber account in October 2014 using the Uber Android app on a Samsung Galaxy S5.
- During registration, the Payment Screen required entry of payment information and completion by tapping a button labeled “REGISTER.”
- Directly below the “REGISTER” button, the screen stated: “By creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.”
- “TERMS OF SERVICE & PRIVACY POLICY” appeared in bright blue, underlined, capitalized text and functioned as a hyperlink to the terms.
- The notice and hyperlink were visible on the screen without scrolling.
- The Terms of Service contained a mandatory arbitration clause and class-action and jury-trial waivers, including a prohibition on class arbitration absent written agreement.
- Meyer later brought a putative antitrust class action alleging Uber and its CEO facilitated illegal price-fixing by third-party drivers.
- Meyer declared he did not recall seeing the hyperlink and did not read the Terms of Service.

## Issues

1. Whether the app interface provided reasonably conspicuous notice of the Terms of Service, including the arbitration clause, under California contract law.
2. Whether tapping “REGISTER” in the presence of the notice unambiguously manifested assent to the Terms of Service, forming an agreement to arbitrate.
3. If an agreement existed, whether defendants waived the right to compel arbitration through litigation conduct.

## Decision

- The Second Circuit vacated the district court’s order denying the motions to compel arbitration and remanded.
- The court held the Payment Screen provided reasonably conspicuous notice of the Terms of Service as a matter of California law.
- The court held Meyer unambiguously manifested assent to the Terms of Service, including arbitration, by tapping “REGISTER” after receiving that notice.
- The court remanded for the district court to decide in the first instance whether defendants waived arbitration.

## Legal Principles

- Under California contract law, mutual assent is evaluated objectively: whether a reasonably prudent user would understand that an action signifies agreement to the presented terms.
- Online terms are enforceable when the user has inquiry notice of the terms and the interface couples that notice with an affirmative act signaling assent.
- A conspicuous, conventional hyperlink (e.g., blue and underlined) placed directly near the action button, with text stating that account creation constitutes agreement, can supply reasonable notice.
- A user’s failure to read terms does not negate assent when notice is adequate and the user proceeds with the action indicating acceptance.
- When an appellate court finds an enforceable arbitration agreement, questions of waiver based on litigation conduct may be left to the trial court if not previously decided.

## Conclusion

The Second Circuit enforced Uber’s in-app arbitration clause, concluding that the registration screen provided conspicuous hyperlink notice and that tapping “REGISTER” manifested assent under California law, and it remanded for the district court to determine whether defendants waived arbitration.


Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017)