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UBER TECHNOLOGIES: Judge Grants Bid to Arbitrate “Peng”

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Judge Pamela K. Chen of the U.S. District Court for the Eastern
District of New York granted defendant’s motion to arbitrate the
case captioned KAI PENG, SAIZHANG GUAN and LONGBIN LI Plaintiff,
v. UBER TECHNOLOGIES, INC., Defendant, No. 16-CV-545 (PKC) (RER)

Uber Technologies, Inc. is a technology company that allows
drivers and potential riders to connect through a smartphone
application. In New York City, before drivers can use the Uber App
to find riders, they must enter into an agreement with Uber USA,
LLC, a wholly owned subsidiary of Uber.

Plaintiffs Kai Peng, Saizhang Guan and Longbin Li are all native
Chinese speakers who speak little or no English. They started
working as Uber drivers in the summer and fall of 2015.

When they registered to use Uber, they downloaded a Chinese
version of the Uber App, which had an interface that was entirely
in Chinese. When they signed up to use the Uber App, the operative
agreement was the software license and online services agreement
dated April 3, 2015 along with the driver addendum to software
license and online services agreement dated November 10, 2014. The
registration process itself was in Chinese, but the April 2015
services agreement and addendum were not translated into Chinese,
and were only available in English. The April 2015 services
agreement contained a clause stating that Uber could modify the
terms and conditions of the agreement or the driver addendum at
any time and that by using the Uber Services, or downloading,
installing, or using the driver app, customer is bound by any
future amendments and additions to the Agreement.

On or about December 11, 2015, Uber issued an updated services
agreement and driver addendum, and once again drivers had to
accept the updated agreement and addendum to continue working. The
services agreement contains an arbitration provision and informs
the drivers that they will be required to resolve any claim that
they may have against Uber on an individual basis, except as
provided, pursuant to the terms of the agreement unless they
choose to opt out of the arbitration provision, and that the
provision precludes them from bringing any class, collective, or
representative actions except under California’s Private Attorneys
General Act of 2004 against Uber or from participating in any such
actions. The Arbitration Provision also contains a delegation
clause an opt-out provision.

Plaintiffs brought a putative class action against Uber alleging
breach of contract as Uber failed to pay them money they were owed
under Uber’s New York City 2015 Guarantee Program. They alleged
that the 2015 December services agreement and addendum were in
English, and none of them could, or did, read it. Plaintiffs
failed to timely opt out of the Arbitration Provision because none
of them had the means to have any of the services agreements
translated into Chinese, and none of them has the resources to pay
an arbitrator to pursue their individual claims, even if the costs
are split with Uber.

On April 18, 2016, defendants moved to compel arbitration.

Judge Chen granted defendant motion to compel arbitration and the
proceedings are stayed pending arbitration of plaintiffs’ claim.
Judge Chen held that while the court is sympathetic to plaintiffs’
argument that their assent was not informed because they were
unable to read the services agreement, which was provided solely
in English, the court is bound by clearly established law holding
that failure to read a contract is not a defense to contract

A copy of Judge Chen’s memorandum and order dated February 23,
2017, is available at https://goo.gl/gylsMC from Leagle.com.

Plaintiffs, represented by:

Anne Seelig, Esq.
C.K. Lee, Esq.
Lee Litigation Group, PLLC
30 E 39th St
New York, NY 10016

Uber Technologies, Inc., Defendant, represented by Adam James Hunt — David John Fioccola — Tiffani B. Figueroa — at Morrison & Foerster LLP